Trew v. Trew

• Decision Date: 23 May 1997
• Docket Number: No. S-96-038,S-96-038
• Citation: 567 N.W.2d 284,252 Neb. 555
• Parties: Wayne TREW, Appellant, v. Arlene TREW, Appellee.
• Court: Nebraska Supreme Court

Page 284

567 N.W.2d 284

252 Neb. 555

Wayne TREW, Appellant, v. Arlene TREW, Appellee.

No. S-96-038.

Supreme Court of Nebraska.

May 23, 1997.

Syllabus by the Court

1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent from the decisions made by the lower courts.

2. Jurisdiction: Appeal and Error. It not only is within the power but is the duty of an appellate court to determine on its own motion whether it has jurisdiction over the matter before it.

3. Jurisdiction: Garnishment. A debt reduced to judgment is liable to garnishment when the process of garnishment issues from the same court, but not otherwise.

4. Decedent's Estates: Garnishment: Courts. An heir's distributive share of a decedent's estate, as decreed by the county court, in the hands of an administrator is not subject to garnishment under process from the district court.

5. Jurisdiction: Appeal and Error. When a lower court lacks jurisdiction to adjudicate the merits of a claim, issue, or question, the appellate court also lacks the power to determine the merits of a claim, issue, or question presented to the lower court.

Thomas A. Wagoner, Grand Island, for Appellant.

David C. Huston, of Huston & Higgins, Grand Island, for Appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

CAPORALE, Judge.

In this garnishment proceeding instituted by the respondent appellee former wife and alimony judgment creditor, Arlene Trew, the district court determined that notwithstanding the postgarnishment renunciation of the petitioner-appellant former husband and debtor, Wayne Trew, of his distributive share of the estate of Glenn D. Trew, deceased, the garnishee copersonal representatives of the estate, Larry D. Trew and Bernice Peterson, were to apply so much of Wayne Trew's share as was required to satisfy Arlene Trew's judgment. Wayne Trew thereupon appealed to the Nebraska Court of Appeals, which reversed the judgment of the district court. Trew v. Trew, 5 Neb.App. 255, 558 N.W.2d 314 (1996). Arlene Trew then successfully sought further review by this court, asserting, in summary, that the Court of Appeals erred in determining that the renunciation was effective. Inasmuch as the district court lacked subject matter jurisdiction, we now reverse the judgment of the Court of Appeals and remand the cause thereto with the direction that the cause be further remanded to the district court for dismissal.

When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent from the decisions made by the lower courts. In re Interest of Joshua M. et al. 251 Neb. 614, 558 N.W.2d 548 (1997); Tess v. Lawyers Title Ins. Corp., 251 Neb. 501, 557 N.W.2d 696 (1997).

When their marriage was dissolved by the district court for Hall County in November 1975, Wayne Trew was ordered to pay Arlene Trew alimony in the sum of $400 per month until her remarriage or death. He failed to pay as ordered and as of August 31, 1995, was $100,725.69 in arrears, including interest accrued to that date.

The decedent, Wayne Trew's brother, died on August 4, 1995, and his will, which divided the decedent's residuary estate among his siblings, was filed for probate in the county court for Custer County.

On September 18, 1995, Arlene Trew transcribed her alimony judgment to the district court for Custer County. On the same day, she filed therein an affidavit and praecipe for summons in garnishment directed to the personal representatives, alleging that they had property of, and were indebted to, Wayne Trew. The personal representatives answered that he had a one-eighth interest in the estate. Arlene Trew subsequently filed an application to determine the garnishees' liability, and on October 2, the district court for Custer County set the matter for trial on November 16. Prior to the scheduled trial, namely, on November 8, 1995, Wayne Trew filed a renunciation of his interest in the estate in the county court for Custer County.

Although jurisdiction has not been challenged by the parties or the courts below, it not only is within the power but is the duty of an appellate court to determine on its own motion whether it has jurisdiction over the matter before it. See, State ex rel. Fick v. Miller, 252 Neb. 164, 560 N.W.2d 793 (1997); City of Lincoln v. Twin Platte NRD, 250 Neb. 452, 551 N.W.2d 6 (1996); Jones v. State, 248 Neb. 158, 532 N.W.2d 636 (1995).

For more than a century, it has been the rule of this state that a debt reduced to judgment is liable to garnishment when the process of garnishment issues from the same court, but not otherwise. We first formulated this rule in Scott v. Rohman, 43 Neb. 618, 62 N.W. 46 (1895), wherein a county court judgment creditor, by garnishment proceedings brought in that court, sought to reach the interest of the judgment debtor in money held by the district court. Acknowledging some conflict among the various jurisdictions, we adopted the above-stated rule, observing, among other things, that to allow a judgment to be garnished in a court other than the one in which it was rendered "would permit one court to interfere with the due execution of process in another tribunal." 43 Neb. at 631, 62 N.W. at 50.

We applied the rule 3 1/2 decades later in American State Bank of Springfield v. Phelps, 120 Neb. 370, 232 N.W. 612 (1930). Therein, the plaintiff bank had recovered a judgment against the defendant in the district court. The bank later procured from the same court a process in garnishment directed to the garnishee administrator of a decedent's estate for the purpose of requiring the administrator to apply the defendant's distributive share on the bank's district court judgment.

The administrator answered that the defendant's distributive share, as decreed by the county court, being the court of original jurisdiction in the settlement of estates of deceased persons, was subject to the order of the county court, and, consequently, the district court had no jurisdiction to garnish the money in his hands as administrator. The district court overruled the administrator's jurisdictional objection and ordered the administrator to pay the fund in...