VonSeggern v. Willman
| Decision Date | 19 November 1993 |
| Docket Number | No. S-91-800,S-91-800 |
| Citation | 508 N.W.2d 261,244 Neb. 565 |
| Court | Nebraska Supreme Court |
| Parties | O. William VonSEGGERN, Appellee, v. Walter H. WILLMAN et al., Appellees, and Sabrina Marie Williams, Appellant. |
Syllabus by the Court
1. Judgments: Appeal and Error. When deciding questions of law, an appellate court is obligated to reach conclusions independent of those reached by the trial court.
2. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in admissibility of evidence.
3. Summary Judgment: Appeal and Error. In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.
4. Summary Judgment. Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
5. Debtors and Creditors: Attachments: Jurisdiction. Jurisdiction over attachment proceedings cannot be legitimately exercised unless the attaching creditor pursues substantially the essential statutory requirements.
6. Attachments: Bonds: Jurisdiction. Since under the present statutory scheme no attachment shall be issued without a bond, the requirement of a bond is jurisdictional.
7. Attachments. An attachment issued without proper statutory authority is void ab initio.
8. Judgments: Jurisdiction: Collateral Attack. A judgment entered by a court which lacks subject matter jurisdiction is void. It is the longstanding rule in Nebraska that such a void judgment may be attacked at any time in any proceeding.
9. Summary Judgment: Proof. A party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must furnish sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law if the evidence presented for summary judgment remains uncontroverted. After the moving party has shown facts entitling it to a judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents a judgment as a matter of law for the moving party.
Siegfried H. Brauer III, of Ross, Schroeder & Brauer, Kearney, for appellant.
Gwyer Grimminger, John A. Wolf, and Arend R. Baack, Grand Island, for appellees O. William VonSeggern, Walter H. Willman, and Overland Nat. Bank.
The instant foreclosure action was initiated by the appellee O. William VonSeggern, who named as defendants all those parties, including the appellant, Sabrina Marie Williams, having a purported interest in certain real estate located in Hall County. Williams' interest resulted from an order in another action granting her a prejudgment attachment on the parcel. That action, also in the district court for Hall County, was a suit for invasion of privacy. The prejudgment attachment was granted on the basis that the defendant in that action sought to transfer property to put it beyond Williams' reach. The district court, in the course of granting VonSeggern's motion for summary judgment in the instant foreclosure action, found that the prejudgment attachment in the other suit was invalid, since it was issued without a bond. The court in the case at bar dismissed Williams' cross-claim to set aside the mortgages in question as fraudulent conveyances. It is from the order granting summary judgment that Williams appeals. We reverse, and remand for further proceedings.
On May 3, 1989, Williams filed a petition alleging that Ronald L. Willman invaded her privacy by photographing her through a two-way mirror when she was nude while tanning in a booth located in his beauty salon. VonSeggern was Ronald Willman's attorney in the invasion of privacy action.
On May 18, 1989, Williams filed an application for attachment, alleging that Ronald Willman was attempting to liquidate, transfer, or otherwise encumber his property holdings for the purpose of placing his financial assets beyond the reach of Williams.
On May 19, 1989, Ronald Willman executed a $20,000 note in favor of VonSeggern and gave VonSeggern a $20,000 mortgage to secure the note. On the same date, Ronald Willman also gave a $40,000 mortgage to Walter H. Willman and a $29,000 mortgage to Overland National Bank of Grand Island.
On June 2, 1989, the court ordered the attachment lien, but no bond was required or paid.
On April 30, 1991, VonSeggern initiated the present foreclosure action. Williams cross-claimed on the basis that the mortgages were fraudulent conveyances. On June 28, VonSeggern moved for summary judgment against Williams, asserting that her attachment lien was invalid for the reason that no bond was paid pursuant to Neb.Rev.Stat. § 25-1003 (Reissue 1989). On the same date, Overland National Bank made a like motion. On July 1, Walter Willman also filed a motion for summary judgment. On August 14, the court granted summary judgment, finding the attachment lien invalid. Williams' cross-claim was dismissed.
Williams asserts that the district court erred in (1) finding that her attachment was invalid; (2) dismissing her cross-claim for fraudulent conveyance; (3) failing to receive at the summary judgment hearing exhibits 2 through 6, respectively: a statement of financial affairs for Ronald Willman, a note from Ronald Willman to VonSeggern, a mortgage held by VonSeggern, a mortgage held by Walter Willman, and a mortgage held by Overland National Bank; and (4) in overruling her motion to strike allegations in VonSeggern's answer, Overland National Bank's answer, and Walter Willman's answer.
When deciding questions of law, this court is obligated to reach conclusions independent of those reached by the trial court. Bell Abstract & Title v. Caro, Inc., 243 Neb. 576, 500 N.W.2d 834 (1993).
In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in admissibility of evidence. Petska v. Olson Gravel, Inc., 243 Neb. 568, 500 N.W.2d 828 (1993); State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991).
In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Ev. Luth. Soc. v. Buffalo Cty. Bd. of Equal., 243 Neb. 351, 500 N.W.2d 520 (1993).
Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Gould v. Orr, 244, 163, 506 N.W.2d 349 (1993).
Williams argues that the trial court erred in finding her prejudgment attachment invalid. She asserts that the lack of a bond is not fatal to her attachment.
However, this court has held that a bond is a statutory requirement. In Vanburg v. Mauel, 131 Neb. 685, 686-87, 269 N.W. 626 (1936), we said Except where the ground of attachment is that the defendant is a foreign corporation or a nonresident of the state, no order of attachment shall be issued until an undertaking is filed and approved with one or more sufficient sureties to the effect that plaintiff will pay defendant all damages resulting from a wrongful attachment.
It is widely accepted that jurisdiction over attachment proceedings cannot be legitimately exercised unless the attaching creditor pursues substantially the essential statutory requirements. See, Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 376 A.2d 60 (1977); Fletcher & Son v. Gordon, 219 Iowa 661, 259 N.W. 204 (1935); Jenkins v. First Nat. Bank et al., 73 Mont. 110, 236 P. 1085 (1925); Winfree v. Mann, 154 Va. 683, 153 S.E. 837 (1930). That is, the courts have no authority to attach property but that which has been granted them by statute. See, Bain & Sons v. Mitchell, 82 Ala. 304, 2 So. 706 (1887); Stowe v. Matson, 94 Cal.App.2d 678, 211 P.2d 591 (1949); Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, supra; Stalvey v. Varn Motors Finance Co., 56 Ga.App. 696, 193 S.E. 627 (1937); Fletcher & Son v. Gordon, supra; Killen v. American Casualty, 231 Md. 105, 189 A.2d 103 (1963); Trinidad Asphalt Mfg. Co. v. Standard Oil Co., 214 Mo.App. 115, 258 S.W. 64 (1924); Edwards v. Stein, 94 N.J.Eq. 251, 119 A. 504 (1923). Since in our statutory scheme no attachment shall be issued without a bond, the requirement of a bond is jurisdictional. See Vanburg v. Mauel, supra. See, also, Martin v. Schillo, 389 Ill. 607, 60 N.E.2d 392 (1945), cert. denied 325 U.S. 880, 65 S.Ct. 1572, 89 L.Ed. 1996; Edwards v. Stein, supra. An attachment issued without proper statutory authority is void ab initio. Stowe v. Matson, supra; Lunger v. Page, 16 N.J.Misc. 529, 2 A.2d 606 (1938).
The trial court, therefore, properly determined that this attachment, issued without a bond, a statutory requirement, was invalid.
Williams next contends that the lack of a bond was the trial court's error and that she should not be penalized for the...
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