State v. Hausmann

seizure for Fourth Amendment purposes, is not unconstitu-
tional simply because it is a ruse. As such, we conclude that
Hedgcock voluntarily consented.
CONCLUSION
We 	conclude 	that 	the 	encounter 	between 	Lutter 	and
Hedgcock did not rise to the level of a Fourth Amendment
seizure. Because there was no seizure, there was no check-
point and the safeguards against unreasonable searches and
seizures were not implicated. Further, we determine that
Hedgcock voluntarily cooperated and consented to the search
of his vehicle and person. Therefore, we conclude the district
court correctly denied Hedgcock’s motion to suppress, and
thus, we affirm.
A ffirmed.
STATe v.HAUS mANN 	819
Cite as 277 Neb. 819
StAte of NebrASkA, Appellee , v.
A leciA m. HAuSmANN, AppellANt.
765 N.W.2d 219
Filedm ay 22, 2009. 	No. S-07-1229.
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. Courts. Vertical stare decisis compels lower courts to follow strictly the decisions
rendered by higher courts within the same judicial system.
3. Courts: Jurisdiction: Appeal and Error. A district court sitting as an appellate
court is divested of jurisdiction to a higher appellate court when an appeal is per-
fected, or to the county court when the county court acts upon the mandate issued
by the district court.
4. Courts: Jurisdiction: Final Orders: Appeal and Error. While an intermediate
appellate court still has jurisdiction over an appeal, it has the inherent power to
vacate or modify a final judgment or order.
5. Motions to Vacate: Final Orders: Time: Appeal and Error. In the absence of
an applicable rule to the contrary, a motion asking an appellate court to exercise
its inherent power to vacate or modify a final judgment or order does not toll the
time for taking an appeal.
6. Appeal and Error. Overruling precedent is justified when the purpose is to
eliminate inconsistency.
7. ____. Remaining true to an intrinsically sounder doctrine better serves the values
of stare decisis than following a more recently decided case inconsistent with the
decisions that came before it.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

8. Case Disapproved. State v. Dvorak, 254 Neb. 87, 574 N.W.2d 492 (1998),
is disapproved.
9. Courts: Appeal and Error. Upon reversing a decision of the Nebraska Court
of Appeals, the Nebraska Supreme Court may consider, as it deems appropriate,
some or all of the assignments of error the Court of Appeals did not reach.
Petition for further review from the Court of Appeals, iNbody,
Chief Judge, and moore and cASSel, Judges, on appeal thereto
from the District Court for Sarpy County, mAx kelcH, Judge,
on appeal thereto from the County Court for Sarpy County,
todd J. HuttoN, Judge. Judgment of Court of Appeals reversed,
and cause remanded for further proceedings.
Patrick 	J. 	Boylan, 	Chief 	Deputy 	Sarpy 	County 	Public
Defender, for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
H eAvicAN, c.J., coNNolly, G errArd, StepHAN, mccormAck,
and miller-lermAN, JJ.
G errArd, J.
Aleciam . Hausmann appealed from her conviction and
sentence for being a minor in possession of alcohol, but the
Nebraska Court of Appeals dismissed her appeal on jurisdic-
tional grounds.1 The issue presented in this petition for further
review is whether a district court, sitting as an appellate court,
has the authority to rehear an appeal.
BACkGROUND
Hausmann was charged by complaint in the county court
with being a minor in possession of alcohol, a Class III mis-
demeanor.2 Hausmann filed a motion to suppress, which the
court overruled. The case proceeded to a bench trial on a stipu-
lated record, preserving the motion to suppress and Hausmann’s
motion to dismiss for insufficient evidence. Hausmann was
convicted of being a minor in possession and sentenced to pay
a $250 fine. She appealed to the district court.
1 State v. Hausmann, 17 Neb. App. 195, 758 N.W.2d 54 (2008).
2 See Neb. Rev. Stat. §§ 53-180.02 and 53-180.05 (Reissue 2004).
820 	277N eBRASkAR ePORTS

On September 10, 2007, the district court entered an order
dismissing the appeal, because the record was inadequate for
appellate review. The court noted that the county court tran-
script contained neither an order finding Hausmann guilty
nor a sentencing order. And the court noted that Hausmann’s
praecipe for transcript had not requested those orders. Because
the transcript did not contain the final judgment of the county
court, the district court dismissed the appeal.
On September 28, 2007, Hausmann moved the district court
to vacate the September 10 dismissal and permit the correction
of the record through the filing of a supplemental transcript.
The district court granted the motion on October 5 and vacated
the September 10 dismissal order. On October 9, a supplemen-
tal transcript was filed containing the conviction and sentenc-
ing orders. On October 22, the district court entered an order
affirming Hausmann’s conviction and sentence on the merits.
On November 21, Hausmann filed her notice of appeal to the
Court of Appeals.
The Court of Appeals dismissed Hausmann’s appeal as
untimely filed. The court reasoned that if the district court
lacked jurisdiction to vacate its order of September 10, 2007,
then the September 10 order had been final and appealable. If
Hausmann’s motion to vacate did not toll the time for taking an
appeal, then her November 21 notice of appeal was untimely.
The Court of Appeals found contradicting authority from this
court regarding the district court’s jurisdiction to rehear an
appeal, but concluded that our more recent authority supported
the conclusion that the district court had no power, when sitting
as an appellate court, to rehear its decisions.3
Thus, the Court of Appeals concluded that the district court
lost jurisdiction over the appeal when it entered the September
10, 2007, order. The court determined that the subsequent
district court proceedings were a nullity and did not toll the
time for Hausmann to file her notice of appeal. The Court of
Appeals dismissed Hausmann’s appeal,4 and we granted her
petition for further review.
3 See Hausmann, supra note 1.
4 See id.
STATe v.HAUS mANN 	821
Cite as 277 Neb. 819

ASSIGNmeNTOF eRROR
Hausmann assigns, as restated, that the Court of Appeals
erred in concluding it had no appellate jurisdiction.
STANDARDOFR eVIeW
[1] A jurisdictional question which does not involve a factual
dispute is determined by an appellate court as a matter of law.5
ANALySIS
The issue presented on further review, as discussed above,
is whether the district court had jurisdiction to vacate its
September 10, 2007, order dismissing Hausmann’s appeal and
decide the appeal on different grounds. The Court of Appeals
found two lines of authority from this court relevant to that
issue and was unable to reconcile them.6
The Court of Appeals first cited State v. Painter,7 and
Interstate Printing Co. v. Department of Revenue,8 in which
we held that a district court sitting as an intermediate court
of appeals has the power to modify its previous final order. In
Painter, as in this case, the defendant appealed from a criminal
conviction in the county court, and the district court affirmed.
But the district court’s order misstated the sentences being
affirmed, and the district court entered another order correcting
the mistake.9
On appeal to this court, we rejected the defendant’s argu-
ment that the district court lacked jurisdiction to enter the sec-
ond order, noting that the district court was not the sentencing
court, but was acting as an intermediate appellate court. We
stated that the district court’s second order was not an order
nunc pro tunc, because it was caused by a misstatement by
the judge, but that “[t]here was simply no error in the district
court’s modifying its earlier order . . . .”10 We explained that
5 Dominguez v. Eppley Transp. Servs., ante p. 531, 763 N.W.2d 696 (2009).
6 See Hausmann, supra note 1.
7 State v. Painter, 224 Neb. 905, 402 N.W.2d 677 (1987).
8 Interstate Printing Co. v. Department of Revenue, 236 Neb. 110, 459
N.W.2d 519 (1990).
9 Painter, supra note 7.
10 Id. at 912, 402 N.W.2d at 682.
822 	277N eBRASkAR ePORTS

“just as the Supreme Court may, on a motion for rehearing,
timely modify its opinion, an intermediate appellate court may
also timely modify its opinion.”11
But in In re Guardianship and Conservatorship of Sim,12
we found no “authorization for a motion for rehearing in such
circumstances” and held that a motion for rehearing did not
toll the time for further appeal. And more recently, in State
v. Dvorak,13 we decided that a district court sitting as an inter-
mediate appellate court lacked subject matter jurisdiction to
hear a motion for reconsideration after the entry of a final order,
explaining that the second order was void and not appealable,
because the district court was “divested of jurisdiction” upon
issuing the first order. And most recently, in Goodman v. City
of Omaha,14 we held that where the district court was acting as
an intermediate appellate court, a motion to alter or amend the
judgment15 did not toll the time for taking an appeal to a higher
appellate court.16
The Court of Appeals explained that it was unable to
reconcile these lines of authority. The court concluded that
“[w]hile it would seem sensible that the district court, when
it acts as an intermediate appellate court, should have the
same ability to reconsider its own decisions . . . as do the
higher appellate courts,” the more recent decisions of this
court had concluded otherwise.17 Thus, the Court of Appeals
concluded that Hausmann’s appeal was untimely and should
be dismissed.
11 Id. at 912, 402 N.W.2d at 681.
12 In re Guardianship and Conservatorship of Sim, 233 Neb. 825, 826, 448
N.W.2d 406, 407 (1989).
13 State v. Dvorak, 254 Neb. 87, 90, 574 N.W.2d 492, 494 (1998).
14 Goodman v. City of Omaha, 274 Neb. 539, 742 N.W.2d 26 (2007).
15 See Neb. Rev. Stat. § 25-1329 (Reissue 2008).
16 Goodman, supra note 14. Accord Timmerman v. Neth, 276 Neb. 585, 755
N.W.2d 798 (2008). See, also, e.g., Hueftle v. Northeast Tech. Community
College, 242 Neb. 685, 496 N.W.2d 506 (1993); Collection Bureau of
Lincoln v. Loos, 233 Neb. 30, 443 N.W.2d 605 (1989); State v. Deutsch, 2
Neb. App. 186, 507 N.W.2d 681 (1993).
17 Hausmann, supra note 1, 17 Neb. App. at 202, 758 N.W.2d at 59.
STATe v.HAUS mANN 	823
Cite as 277 Neb. 819

[2] Werecognize that this court’s conflicting authority placed
the Court of Appeals in a difficult position, and we find no
fault with the Court of Appeals’ conclusion that stare decisis
compelled it to abide by its understanding of our more recent
decisions. Vertical stare decisis compels lower courts to follow
strictly the decisions rendered by higher courts within the same
judicial system.18 But we agree with the Court of Appeals’
observation that a district court, acting as an intermediate
appellate court, should have the ability to reconsider its own
decisions. And we conclude that it does.
To begin with, it is important to clarify the difference
between two related, but analytically distinct issues: whether
the district court has jurisdiction to rehear an appeal on which
a final order has been entered, and whether a motion asking
the court to exercise such jurisdiction tolls the time for taking
an appeal. The decisions in Goodman and In re Guardianship
and Conservatorship of Sim, and the other cases cited above,
involved circumstances in which the district court overruled
a motion to change its disposition of the appeal.19 Thus, the
district court’s power to modify its earlier order was not at
issue. Instead, the question in those cases was whether the
time for filing a notice of appeal had been tolled by the appel-
lant’s motion.
The issue here is different, because in this case, the district
court vacated its earlier order and entered a new order dispos-
ing of the appeal. There is no question that Hausmann could
appeal within 30 days of the district court’s new final order,
if the court had the power to enter such an order.20 We held in
Dvorak that the court did not have such power.21 But we con-
clude that our decision in Dvorak was incorrect.
18 See Pogge v. American Fam. Mut. Ins. Co., 13 Neb. App. 63, 688 N.W.2d
634 (2004).
19 See, Timmerman, supra note 16; Goodman, supra note 14; Hueftle, supra
note 16; In re Guardianship and Conservatorship of Sim, supra note 12;
Deutsch, supra note 16.
20 See, Interstate Printing Co., supra note 8; Neb. Rev. Stat. § 25-1912
(Reissue 2008).
21 See Dvorak, supra note 13.
824 	277N eBRASkAR ePORTS

In Dvorak, the defendant filed an application to set aside
her conviction upon completion of her probation.22 The county
court granted the application, but the State appealed. The dis-
trict court initially entered an order reversing the decision of
the county court. But the defendant filed a “motion to recon-
sider,” and the district court sustained that motion and entered
another order affirming the county court’s order.23 The State
appealed to this court. We held that the district court lacked
jurisdiction to enter the second order, explaining that
we do not find any statute or court rule which allows for
a rehearing in the district court after the district court has
made its ruling . . . . Just as a motion for new trial does
not toll the time for appeal when a district court is acting
as an appellate court, neither does a motion to reconsider.
As a result, the district court’s exercise of subject matter
jurisdiction over [the defendant’s] motion for reconsidera-
tion was without statutory authority. Therefore, we hold
that the order [reversing the county court’s decision] was
the district court’s final disposition of the appeal and that
the district court was divested of jurisdiction over the
matter upon that order.24
[3] But our reasoning was erroneous. We conflated whether
the defendant’s motion was a tolling motion with whether the
district court had the power to sustain the motion. The fact that
a motion may not toll the time for taking an appeal does not
mean that the motion cannot be sustained. And we neglected
well-established law distinguishing between the finality of an
order for purposes of appeal and the lower court’s appellate
jurisdiction over the case. It is well established that it is not the
entry of a final order or judgment that divests the district court
of jurisdiction in such an instance. Rather, a district court sit-
ting as an appellate court is divested of jurisdiction to a higher
appellate court when an appeal is perfected,25 or to the county
22 See Neb. Rev. Stat. § 29-2264 (Reissue 2008).
23 See Dvorak, supra note 13, 254 Neb. at 89, 574 N.W.2d at 493.
24 Id. at 90, 574 N.W.2d at 494.
25 See Billups v. Scott, 253 Neb. 293, 571 N.W.2d 607 (1997).
STATe v.HAUS mANN 	825
Cite as 277 Neb. 819

court when the county court acts upon the mandate issued by
the district court.26 We should not have suggested that the dis-
trict court’s entry of a final order, standing alone, divested the
court of jurisdiction.
And fundamentally, we erred in finding no authority for
the district court, sitting as an appellate court, to modify its
previous order. We overlooked our decisions to the contrary
in Painter and Interstate Printing Co.27 In particular, we over-
looked our reasoning in Interstate Printing Co., in which we
relied on the district court’s inherent power to vacate or modify
its judgments or orders, either during the term at which they
were made, or upon a motion filed within 6 months of the
entry of the judgment or order.28 And, as noted by the Court
of Appeals in this case, our holding in Painter that “an inter-
mediate appellate court may also timely modify its opinion”29
is consistent with the generally recognized common-law rule
that an appellate court has the inherent power to reconsider an
order or ruling until divested of jurisdiction.30
We are not persuaded by the State’s argument that Painter
and Interstate Printing Co. are distinguishable from Dvorak,
because, according to the State, they involved internally incon-
sistent orders. Our opinions do not support the State’s sug-
gested distinction. In Dvorak, we did not cite our earlier deci-
sions on this issue, much less expressly distinguish them. In
Painter, the order of affirmance that the district court corrected
was not defective or void—it was simply incorrect.31 And simi-
larly, in Interstate Printing Co., we specifically said that the
26 See State v. Bracey, 261 Neb. 14, 621 N.W.2d 106 (2001).
27 See, Interstate Printing Co., supra note 8; Painter, supra note 7.
28 See, Interstate Printing Co., supra note 8; Neb. Rev. Stat. § 25-2001(1)
(Reissue 2008).
29 Painter, supra note 7, 224 Neb. at 912, 402 N.W.2d at 681.
30 See, generally, 5 C.J.S. Appeal and Error § 1113 (2007). See, e.g., Miss.
State Highway Comm. v. Herring, 241m iss. 729, 133 So. 2d 895 (1961);
Folding Furniture Works v. Wisconsin L. R. Board, 232 Wis. 170, 286 N.W.
875 (1939).
31 Painter, supra note 7.
826 	277N eBRASkAR ePORTS

court had acted to correct a “judicial error.”32 In other words,
contrary to the State’s argument, our decisions in Painter and
Interstate Printing Co. rested on the well-established rule that
an appellate court has the inherent power to reconsider its
own rulings.
[4,5] And that rule makes sense. Judicial efficiency is
served when any court, including an intermediate appellate
court, is given the opportunity to reconsider its own rulings,
either to supplement its reasoning or correct its own mis-
takes.33 We conclude that Painter and Interstate Printing Co.
represent correct statements of the law, and reaffirm our hold-
ing in those cases that while an intermediate appellate court
still has jurisdiction over an appeal, it has the inherent power
to vacate or modify a final judgment or order.34 We empha-
size, however, that in the absence of an applicable rule to the
contrary, a motion asking the court to exercise that inherent
power does not toll the time for taking an appeal.35 A party
can move the court to vacate or modify a final order—but if
the court does not grant the motion, a notice of appeal must
be filed within 30 days of the entry of the earlier final order if
the party intends to appeal it.36 And if an appeal is perfected
before the motion is ruled upon, the district court loses juris-
diction to act.37
32 Interstate Printing Co., supra note 8, 236 Neb. at 115, 459 N.W.2d at
523.
33 Cf., Houston v. Metrovision, Inc., 267 Neb. 730, 677 N.W.2d 139 (2004);
Mid City Bank v. Omaha Butcher Supply, 222 Neb. 671, 385 N.W.2d 917
(1986); State v. Archbold, 217 Neb. 345, 350 N.W.2d 500 (1984); State v.
Lytle, 194 Neb. 353, 231 N.W.2d 681 (1975).
34 See, Interstate Printing Co., supra note 8; Painter, supra note 7.
35 See, Timmerman, supra note 16; Goodman, supra note 14; Hueftle, supra
note 16; In re Guardianship and Conservatorship of Sim, supra note 12;
Deutsch, supra note 16. Compare Interstate Printing Co., supra note 8
(holding when judgment is amended, time for appeal runs from entry of
amended judgment).
36 See, id.; § 25-1912.
37 See Billups, supra note 25.
STATe v.HAUS mANN 	827
Cite as 277 Neb. 819

[6-8] Dvorak is inconsistent with that holding.38 While
the doctrine of stare decisis is entitled to great weight,39
it is grounded in the public policy that the law should be
stable, fostering both equality and predictability of treatment.40
Overruling precedent is justified, however, when the purpose
is to eliminate inconsistency.41 And remaining true to an intrin-
sically sounder doctrine better serves the values of stare decisis
than following a more recently decided case inconsistent with
the decisions that came before it.42 Therefore, State v. Dvorak
is disapproved.43
As noted above, a district court acting as an intermediate
appellate court is divested of jurisdiction either when an appeal
to a higher appellate court is perfected or when a lower court
acts upon the district court’s mandate. In this case, obvi-
ously, no appeal had been perfected from the district court’s
September 10, 2007, order. And on an appeal from the county
court, the district court is to issue a mandate within 2 judicial
days after the decision of the district court becomes final; that
is, within 2 judicial days after the 30-day appeal time from
the court’s decision has run.44 In this case, the district court
vacated the September 10 order on October 5, before it had
become final—obviously, a mandate had neither issued nor
been acted upon by the county court.
The 	record 	establishes 	that 	at 	the 	time 	it 	vacated
the September 10, 2007, order, the district court still had
38 See Dvorak, supra note 13.
39 See Bronsen v. Dawes County, 272 Neb. 320, 722 N.W.2d 17 (2006).
40 See Metro Renovation v. State, 249 Neb. 337, 543 N.W.2d 715 (1996)
(Connolly, J., concurring in result), disapproved on other grounds, State v.
Nelson, 274 Neb. 304, 739 N.W.2d 199 (2007).
41 See, e.g., State v. Gautier, 871 A.2d 347 (R.I. 2005); Ex parte Townsend,
137 S.W.3d 79 (Tex. Crim. App. 2004); Newman v. Erie Ins. Exchange,
256 Va. 501, 507 S.e.2d 348 (1998); Mayhew v. Mayhew, 205 W. Va. 490,
519 S.e.2d 188 (1999).
42 Mayhew, supra note 41.
43 See Dvorak, supra note 13.
44 See, Neb. Rev. Stat. § 25-2733 (Cum. Supp. 2006); State v. Beyer, 260
Neb. 670, 619 N.W.2d 213 (2000).
828 	277N eBRASkAR ePORTS

jurisdiction to exercise its inherent power, as an intermediate
appellate court, to vacate its previous ruling. And Hausmann
timely appealed within 30 days of the district court’s October
22 order.45 Therefore, we find merit to Hausmann’s assignment
of error on further review.
[9] We recognize that upon reversing a decision of the
Nebraska Court of Appeals, we may consider, if appropri-
ate, some or all of the assignments of error that the Court of
Appeals did not reach.46 In this case, however, the Court of
Appeals did not proceed past the jurisdictional issue presented,
and neither of the State’s briefs has discussed the underlying
merits of the appeal. We conclude that those issues should be
briefed by the State and addressed by the Court of Appeals in
the first instance.
CONCLUSION
The decision of the Court of Appeals is reversed, and the cause
remanded to the Court of Appeals for further proceedings.
reverSed ANd remANded for
furtHer proceediNGS.
W riGHt, J., participating on briefs.
45 See Interstate Printing Co., supra note 8.
46 Incontro v. Jacobs, ante p. 275, 761 N.W.2d 551 (2009).
tHe couNty of SArpy, NebrASkA, A body corporAte ANd
politic , Appellee ANd croSS-AppellANt, v. tHe city of
pApillioN, NebrASkA, A muNicipAl corporAtioN,
AppellANt ANd croSS-Appellee .
765 N.W.2d 456
Filedm ay 22, 2009. 	No. S-08-166.
1. Annexation: Ordinances: Equity. An action to determine the validity of an
annexation ordinance and enjoin its enforcement sounds in equity.
2. Equity: Appeal and Error. On appeal from an equity action, an appellate court
decides factual questions de novo on the record and, as to questions of both
fact and law, is obligated to reach a conclusion independent of the trial court’s
determination.
COUNTyOFSARP y v.CIT yOFPAPILLION 	829
Cite as 277 Neb. 829