Wooden v. County of Douglas

J ohN woodeN ANd coNNie woodeN, husbANd ANd wife ,
AppellANTs , v . couNTy of douglAs , A poliTicAl
subdivisioN of The sTATe of N ebrAskA, Appellee .
751 N.W.2d 151
Filed June 27, 2008. 	No. S-06-1163.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve
a factual dispute is determined by an appellate court as a matter of law.
2. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.
3. Eminent Domain: Jurisdiction: Notice: Appeal and Error. In a condemnation
action, only the filing of the notice of appeal and, by extension, service of this
notice is jurisdictional. The failure to timely file an affidavit of proof of service is
not jurisdictional; rather, such is merely directory.
4. Eminent Domain: Notice: Appeal and Error. Though service of process is
unnecessary upon the filing of a petition on appeal under Neb. rev. Stat. § 76-717
(reissue 2003), it is necessary for the party filing such petition to give notice of
the filing to the opposing party.
petition for further review from the Court of Appeals, irwiN,
sievers, and moore, Judges, on appeal thereto from the District
Court for Douglas County, J ohN d. hArTigAN, J r ., Judge.
Judgment of Court of Appeals reversed, and cause remanded.
William e. pfeiffer, of raynor, rensch & pfeiffer, for
appellants.
Donald W. Kleine, Douglas County Attorney, and Bernard J.
Monbouquette for appellee.
heAvicAN, C.J., coNNolly, gerrArd, sTephAN, mccormAck,
and miller -lermAN, JJ.
heAvicAN, C.J.
INTroDUCTIoN
The Court of Appeals affirmed the district court’s dismissal of
John Wooden and Connie Wooden’s appeal in this condemnation
action.1 The Woodens petitioned for further review of that deci-
sion. We reverse the decision of the Court of Appeals.
1 Wooden v. County of Douglas, 16 Neb. App. 336, 744 N.W.2d 262 (2008).
WooDeN v. CoUNTY oF DoUgLAS 	971
Cite as 275 Neb. 971
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

972 	275 NeBrASKA reporTS
FACTUAL BACKgroUND
This case stems from a condemnation action commenced
against the Woodens by Douglas County (the County). The
report and award of the appraisers was filed with the Douglas
County Court on August 17, 2005. on September 9, the Woodens
filed with the county court a notice of intent to appeal the report
and award to the district court. The record indicates that this
notice was served upon counsel for the County by first class
mail. Twelve days later, on September 21, the Woodens filed
their “Affidavit of Mailing of Notice” with the district court.
on october 31, the Woodens filed their “petition on Appeal
to District Court,” as required by Neb. rev. Stat. § 76-717
(reissue 2003). The record indicates that this petition was also
served upon counsel for the County by first class mail. on
March 21, 2006, the petition was dismissed for lack of service
of a summons pursuant to Neb. rev. Stat. § 25-217 (Cum.
Supp. 2006).
A praecipe for service was then filed on June 2, 2006. Service
was perfected on June 6, and the summons was returned on June
9. on July 20, Douglas County filed a motion to dismiss the
Woodens’ appeal, alleging that the district court lacked subject
matter jurisdiction. on September 19, the district court granted
the motion, concluding that it lacked jurisdiction. In dismissing
the appeal, the district court cited, without further discussion,
Neb. rev. Stat. §§ 76-715 and 76-715.01 (reissue 2003) and
Neumeyer v. Omaha Public Power Dist.2
The Court of Appeals affirmed the district court’s dismissal.
The court noted that under § 76-715.01, a party appealing from
the award for assessment of damages must file a notice of appeal
within 30 days and also must serve that notice upon all other
parties, with “‘proof of such service . . . made by an affidavit of
the appellant filed with the court within five days after the filing
of the notice.’”3 The Court of Appeals held that “compliance
with the requirement of timely filing the affidavit of mailing
2 Neumeyer v. Omaha Public Power Dist., 188 Neb. 516, 198 N.W.2d 80
(1972).
3 Wooden v. County of Douglas, supra note 1, 16 Neb. App. at 338, 744
N.W.2d at 265.

notice pursuant to § 76-715.01 has not been the subject of prior
appellate litigation in Nebraska,” but found that “such timely
compliance is required.”4 Since the Woodens did not file their
affidavit of proof of service within 5 days, the Court of Appeals
concluded that the district court lacked jurisdiction to hear the
Woodens’ appeal.
ASSIgNMeNT oF error
In their petition for further review, the Woodens argue that the
Court of Appeals erred in affirming the district court’s dismissal
of their condemnation appeal.
STANDArD oF reVIeW
[1] A jurisdictional question which does not involve a factual
dispute is determined by an appellate court as a matter of law.5
[2] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.6
ArgUMeNT
The Woodens argue that the Court of Appeals erred in finding
that the lack of timely filing of the affidavit of proof of service
divested the district court of jurisdiction to hear their appeal.
We agree.
Filing of Affidavit of Proof of Service.
Because they are helpful to an understanding of the issues
presented in this case, we first set forth the relevant statutory
provisions dealing with the filing of an appeal in a condemna-
tion action.
The right to appeal from an award for assessment of dam-
ages in an eminent domain action is set forth in § 76-715,
which provides:
either condemner or condemnee may appeal from the
assessment of damages by the appraisers to the district
court of the county where the petition to initiate proceedings
4 Id.
5 Poppert v. Dicke, ante p. 562, 747 N.W.2d 629 (2008).
6 McClellan v. Board of Equal. of Douglas Cty., ante p. 581, 748 N.W.2d 66
(2008).
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974 	275 NeBrASKA reporTS
was filed. Such appeal shall be taken by filing a notice of
appeal with the county judge within thirty days from the
date of filing of the report of appraisers as provided in sec-
tion 76-710.
These requirements are expanded upon in § 76-715.01:
The party appealing from the award for assessment of
damages by the appraisers in any eminent domain action
shall, within thirty days of the filing of the award, file a
notice of appeal with the court, specifying the parties tak-
ing the appeal and the award thereof appealed from, and
shall serve a copy of the same upon all parties bound by
the award or upon their attorneys of record. Service may be
made by mail, and proof of such service shall be made by
an affidavit of the appellant filed with the court within five
days after the filing of the notice stating that such notice
of appeal was duly mailed or that after diligent search
the addresses of such persons or their attorneys of record
are unknown.
Finally, § 76-717 provides:
Within thirty days after the filing of such notice of
appeal, the county judge shall prepare and transmit to the
clerk of the district court a duly certified transcript of all
proceedings had concerning the parcel or parcels of land
as to which the particular condemnee takes the appeal
upon payment of the fees provided by law for prepara-
tion thereof. When notice of appeal is filed by both the
condemner and the condemnee, such transcript shall be
prepared only in response to the first notice of appeal.
The transcript prepared in response to the second notice
of appeal shall contain only a copy of such notice and the
proceedings shall be docketed in the district court as a
single cause of action.
The filing of the notice of appeal shall confer jurisdic-
tion on the district court. The first party to perfect an
appeal shall file a petition on appeal in the district court
within fifty days after the filing of the notice of appeal. If
no petition is filed, the court shall direct the first party to
perfect an appeal to file a petition and impose such sanc-
tions as are reasonable. The appeal shall be tried de novo in

the district court. Such appeal shall not delay the acquisi-
tion of the property and placing of same to a public use if
the condemner shall first deposit with the county judge the
amount assessed by the appraisers.
(emphasis supplied.)
In concluding that the district court lacked jurisdiction, the
Court of Appeals relied upon Radil v. State,7 while the district
court cited to Neumeyer v. Omaha Public Power Dist.8 In both
Neumeyer and Radil, this court held that the provisions of
§ 76-715.01 were mandatory. A closer examination of these
cases, however, shows that they are both distinguishable from
this case.
In Radil, the issue presented to the court was whether it was
necessary for a notice of appeal to be filed and served upon
the other party in a condemnation action. The precise question
of whether the filing of the affidavit of proof of service was
also mandatory was not presented to or decided by the court.
And in Neumeyer, while we did note that the requirements of
§ 76-715.01 were mandatory, we did so in the context of hold-
ing that the requirements of § 76-716 (requiring the filing of an
appeal bond) were directory.9 Again, the issue of whether the
filing of the affidavit of proof of service was jurisdictional was
not presented or decided.
[3] What both the district court and the Court of Appeals
overlook is language from § 76-717, which provides in relevant
part that the filing of the notice of appeal confers jurisdiction
on the district court. A court will construe statutes relating to
the same subject matter together so as to maintain a consistent
and sensible scheme.10 The components of a series or collec-
tion of statutes pertaining to a certain subject matter which are
in pari materia may be conjunctively considered and construed
to determine the intent of the Legislature, so that different
7 Radil v. State, 182 Neb. 291, 154 N.W.2d 466 (1967).
8 Neumeyer v. Omaha Public Power Dist., supra note 2.
9 Id.
10 Japp v. Papio-Missouri River NRD, 271 Neb. 968, 716 N.W.2d 707 (2006).
WooDeN v. CoUNTY oF DoUgLAS 	975
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976 	275 NeBrASKA reporTS
provisions of the act are consistent, harmonious, and sensible.11
And when §§ 76-715, 76-715.01, and 76-717 are considered in
light of each other, it is clear that the act which confers jurisdic-
tion on the district court, and which is therefore mandatory, is
the filing of the notice of appeal and, by extension, service of
this notice.
Moreover, we note that two distinct acts occurring days apart
cannot both be jurisdictional. And because the act which is man-
datory and jurisdictional is the filing of the notice of appeal, we
conclude that the Woodens’ failure to timely file an affidavit of
proof of service could not and did not divest the district court
of jurisdiction. Instead, the timely filing of such an affidavit is
directory. We find persuasive the reasoning of the Neumeyer
court, which held that the filing of an appeal bond was direc-
tory rather than mandatory and that “to hold [that such was
mandatory] would convert clear, brief language into a jurisdic-
tional maze.”12
The Court of Appeals erred in concluding that the district
court lacked jurisdiction due to the Woodens’ failure to file a
timely affidavit of proof of service.
Service of Process.
As noted, we conclude the district court did not lack jurisdic-
tion as a result of the Woodens’ failure to timely file an affidavit
of proof of service. However, in addition to this reasoning, the
district court also concluded it lacked jurisdiction due to lack
of service of process, i.e., the service of a summons. The Court
of Appeals did not reach this issue given its conclusion with
respect to the affidavit of proof of service. We consider the issue
now, and reject the contention that the County was entitled to
service of process in this case.
pursuant to § 76-717, the first party perfecting an appeal must
file a petition on appeal with the district court within 50 days
after the filing of the notice of appeal. The record establishes
that the Woodens filed such a petition on october 31, 2005, and
11 Id.
12 Neumeyer v. Omaha Public Power Dist., supra note 2, 188 Neb. at 521, 198
N.W.2d at 83.

that such was done in a timely manner. The record also indicates
that counsel for the County was served by first class mail with
this petition. However, this petition was dismissed on March 21,
2006, due to a lack of service of process. Service was eventually
perfected by summons on June 6.
The County contends that it was entitled to service of process
of the Woodens’ petition. It further argues that the Woodens’
october 31, 2005, petition was dismissed for lack of such ser-
vice pursuant to § 25-217 and that by the time service of process
was requested and perfected on June 6, 2006, it was too late.
The comment to Neb. Ct. r. of pldg. in Civ. Actions 3 (rev.
2003) states that a civil action is commenced by the filing of a
complaint in “the office of the clerk of a proper court,” while the
comment to Neb. Ct. r. of pldg. in Civ. Actions 4 (rev. 2003)
provides that service of process of such complaints should be
made in accordance with the provisions of chapter 25, article 5,
of the Nebraska revised Statutes. And § 25-217 provides that
an “action shall stand dismissed . . . as to any defendant not
served within six months from the date the complaint was filed.”
However, we conclude that such provisions relating to the com-
mencement of an action and service of process of that action are
inapplicable in this case.
Instead, the petition on appeal filed by the Woodens was not
the commencement of a new action, but simply a continuation of
the condemnation action filed by the County. The continuation
of this action, and of the petition on appeal itself required by
§ 76-717, is therefore governed by the statutory scheme relating
to condemnation actions.13
[4] Because the petition is merely a continuation of the
County’s condemnation action, it is not equivalent to a com-
plaint under this court’s rules of pleading. As such, the County
was not entitled to service of process. We note, though, that the
County was entitled to notice of the filing of such petition,14
which the record indicates was given.
13 Neb. rev. Stat. §§ 76-701 to 76-726 (reissue 2003 & Cum. Supp. 2004).
14 See, Neb. rev. Stat. § 25-534 (reissue 1995); Neb. Ct. r. of pldg. in Civ.
Actions 5 (rev. 2003).
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Cite as 275 Neb. 971

978 	275 NeBrASKA reporTS
The district court’s dismissal of the Woodens’ appeal for lack
of service of process was erroneous.
CoNCLUSIoN
The Court of Appeals erred in concluding that the district
court lacked jurisdiction over the Woodens’ appeal. We therefore
reverse the decision of the Court of Appeals and remand the
cause to that court with instructions to remand the cause to the
district court for reinstatement of the Woodens’ appeal.
reversed ANd remANded .
wrighT, J., not participating.
gilberT m. ANd mArThA h. hiTchcock fouNdATioN,
A N ebrAskA NoNprofiT corporATioN, eT Al ., Appellees ANd
cross -AppellANTs , v . deNmAN kouNTze , J r ., Appellee ,
edwArd h. kouNTze , AppellANT ANd cross -Appellee ,
ANd chArles deNmAN kouNTze , Appellee .
751 N.W.2d 129
Filed June 27, 2008. 	No. S-07-286.
1. Jurisdiction: Appeal and Error. Subject matter jurisdiction is a question of law
for the court, which requires an appellate court to reach a conclusion independent
of the lower court’s decision.
2. Actions: Corporations: Notice. Notice to the Attorney general as an interested
party is an essential prerequisite to proceeding in an action under the Nebraska
Nonprofit Corporation Act, Neb. rev. Stat. §§ 21-1901 to 21-19,177 (reissue 1997
& Cum. Supp. 2006).
Appeal from the District Court for Douglas County: JAmes T.
gleAsoN, Judge. Affirmed.
David A. Domina and Claudia L. Stringfield-Johnson, of
Domina Law group, p.C., L.L.o., and David J. Lanphier, of
Broom, Johnson, Clarkson & Lanphier, for appellant.
edward D. Hotz and Michael r. peterson, of Hotz, Weaver,
Flood, Breitkreutz & grant, for appellees gilbert M. and Martha
H. Hitchcock Foundation et al.
heAvicAN, 	C.J., 	wrighT, 	coNNolly, 	gerrArd, 	sTephAN,
mccormAck, and miller -lermAN, JJ.