Saturday, July 07, 2007
Supreme Court cautions parties to be more diligent in making jurisdictional challenges especially when they are upstairs in the big court. In two cases involving probated estates the Nebraska Supreme Court allows a related case to proceed in the district court but refuses to revoke an informally appointed personal representative's status for the estate of a decedent who had died in 1987, Washington v. Conley, S-06-428, 273 Neb. 908 In re Estate of Nemetz, S-06-487, 273 Neb. 918, The Supreme Court criticizes the Legislatures giving exclusive jurisdiction of probate cases to the county courts under § 24-517 (Cum. Supp. 2006), while Neb. Const. art. v, § 9 grants the district courts common law and equity jurisdiction. In Washington the Supreme court reverses the district court's decision that it lacked jurisdiction to hear a constructive trust case that appeared to be related to a probate case in county court. The District court failed to consider the jurisdictional attack as a facial one under Rule 12b1, depending solely on the allegations in the plaintiff's complaint and thus in finding that it lacked jurisdiction, the district court erroneously relied upon information not found in Washington’s complaint, specifically, the assertions of counsel that the property at issue in this case is subject to a separate and contemporaneous probate proceeding in county court. The supreme court rejected the objections of the decedent's children to the second wife's appointment as informal personal representative nearly 20 years after the decedent's death in Estate of Nemetz. Although it appears unseemly for the widow to wait 20 years to probate an estate and shut off the children, the court concluded "the county court (properly) applied § 30-2454(b) finding no cause to remove Widow as personal representative. based on an examination for error appearing on the record."