30-1601. Appeal; procedure; operate as supersedeas; when; appellant; pay costs; when.

(1) In all matters arising under the Nebraska Probate Code, in all matters in county court arising under the Nebraska Uniform Trust Code, and in all matters in county court arising under the Health Care Surrogacy Act, appeals may be taken to the Court of Appeals in the same manner as an appeal from district court to the Court of Appeals.

(2) An appeal may be taken by any party and may also be taken by any person against whom the final judgment or final order may be made or who may be affected thereby.

(3) When the appeal is by someone other than a personal representative, conservator, trustee, guardian, guardian ad litem, or surrogate pursuant to the Health Care Surrogacy Act the appealing party shall, within thirty days after the entry of the judgment or final order complained of, deposit with the clerk of the county court a supersedeas bond or undertaking in such sum as the court shall direct, with at least one good and sufficient surety approved by the court, conditioned that the appellant will satisfy any judgment and costs that may be adjudged against him or her, including costs under subsection (6) of this section, unless the court directs that no bond or undertaking need be deposited. If an appellant fails to comply with this subsection, the Court of Appeals on motion and notice may take such action, including dismissal of the appeal, as is just.

(4) The appeal shall be a supersedeas for the matter from which the appeal is specifically taken, but not for any other matter. In appeals pursuant to sections 30-2601 to 30-2661, upon motion of any party to the action, the county court may remove the supersedeas or require the appealing party to deposit with the clerk of the county court a bond or other security approved by the court in an amount and conditioned in accordance with sections 30-2640 and 30-2641. Once the appeal is perfected, the court having jurisdiction over the appeal may, upon motion of any party to the action, reimpose or remove the supersedeas or require the appealing party to deposit with the clerk of the court a bond or other security approved by the court in an amount and conditioned in accordance with sections 30-2640 and 30-2641. Upon motion of any interested person or upon the court's own motion, the county court may appoint a special guardian or conservator pending appeal despite any supersedeas order.

(5) The judgment of the Court of Appeals shall not vacate the judgment in the county court. The judgment of the Court of Appeals shall be certified without cost to the county court for further proceedings consistent with the determination of the Court of Appeals.

(6) If it appears to the Court of Appeals that an appeal was taken vexatiously or for delay, the court shall adjudge that the appellant shall pay the cost thereof, including an attorney's fee, to the adverse party in an amount fixed by the Court of Appeals, and any bond required under subsection (3) of this section shall be liable for the costs. In a proceeding under sections 30-701 to 30-713, the Court of Appeals may also order remedies under section 30-705.

Source

Cross References

Annotations

1. Scope

2. When appeal allowed

3. Procedure

4. Who may appeal

1. Scope

In probate proceedings, the Supreme Court's scope of review is limited to error appearing on the record. In re Estate of Massie, 218 Neb. 103, 353 N.W.2d 735 (1984).

Provisions relating to appeal in probate matters apply to actions involving appointment of guardians and administration of their wards' estates. In re Guardianship of Hergenrother, 141 Neb. 858, 5 N.W.2d 118 (1942); In re Guardianship of Warner, 137 Neb. 25, 288 N.W. 39 (1939).

This section is not applicable to appeals from decree of partition and distribution of estates; executors cannot appeal unless pecuniarily affected. Merrick v. Kennedy, 46 Neb. 264, 64 N.W. 989 (1895).

2. When appeal allowed

Party aggrieved by final order of county court in probate matter is not confined to remedy of appeal, but may resort to error proceedings. In re Berg's Estate, 139 Neb. 99, 296 N.W. 460 (1941).

Orders made during progress of probate proceedings allowing fees and partial distribution of estate are interlocutory and not final, and are not appealable. In re Estate of Lehman, 135 Neb. 592, 283 N.W. 199 (1939).

Party not prejudiced by judgment cannot appeal therefrom; order of county court requiring executor to retain sufficient funds to pay contingent claim when absolute is not appealable. In re Estate of Bolton, 121 Neb. 737, 238 N.W. 358 (1931).

Order of county court approving executor's account, not discharging executor, but continuing proceedings to future date for further report, is not final order and not appealable. In re Hansen's Estate, 117 Neb. 551, 221 N.W. 694 (1928).

Appeal may be had by one affected whose name does not appear as party. In re Strelow's Guardianship, 116 Neb. 873, 219 N.W. 387 (1928).

Order of distribution is appealable; proceeding being in rem, all persons interested are parties. In re Estate of Creighton, 91 Neb. 654, 136 N.W. 1001 (1912).

Appeal lies from judgment of probate court granting or refusing an allowance to widow out of estate of her husband. Rieger v. Schaible, 81 Neb. 33, 115 N.W. 560 (1908).

Appeal lies from all final orders and judgments in probate matters. Weeke v. Wortmann, 77 Neb. 407, 109 N.W. 503 (1906).

Order that administrator turn over to his successor money claimed by him as gift from testator is appealable. Foster v. Murphy, 76 Neb. 576, 107 N.W. 843 (1906).

Order removing special administrator and appointing another to serve instead is final order and appealable. In re Estate of Pope, 75 Neb. 550, 106 N.W. 659 (1906).

An order refusing permission to file claim after expiration of time allowed is appealable. Ribble v. Furmin, 71 Neb. 108, 98 N.W. 420 (1904).

Appeal lies from order allowing claim against estate though no answer was filed against claim, and order was made in absence of administrator. Herman v. Beck, 68 Neb. 566, 94 N.W. 512 (1903).

Order allowing claim is appealable. Estate of McKenna v. McCormick, 60 Neb. 595, 83 N.W. 844 (1900).

Appeal from probate of will may be made without consent of court and without notice. Bazzo v. Wallace, 16 Neb. 293, 20 N.W. 314 (1884).

3. Procedure

When a protected person dies pending an appeal initiated by a close family member who filed an objection, whether the protected person needed a conservator is a moot issue unless the family member asks the appellate court to take judicial notice of a proceeding that shows the issue is not moot. Absent that showing, the protected person's death abates the family member's appeal, but it does not extinguish the cause of action or affect the validity of the underlying orders appointing a conservator. In re Conservatorship of Franke, 292 Neb. 912, 875 N.W.2d 408 (2016).

When an executor appeals to protect his or her individual interest, a bond is required, the same as any litigant. In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).

Right of appeal is statutory. In re Estate of Bednar, 151 Neb. 242, 37 N.W.2d 195 (1949).

Where account is allowed in part and appeal taken and bond given solely for part disallowed, appeal did not bring up entire account for review. In re Estate of Wilson, 83 Neb. 252, 119 N.W. 522 (1909).

Where same person was administrator of one estate and guardian of two other estates, and appeal was taken from objections to reports, cases were properly consolidated on appeal. Etmund v. Etmund, 83 Neb. 151, 119 N.W. 239 (1909).

Taking second appeal does not of itself constitute abandonment of first one. Drexel v. Reed, 65 Neb. 231, 91 N.W. 254 (1902).

Administrator, appealing from allowance of claim, thereby waives irregularities before judgment and brings whole controversy before the court. Dredla v. Baache, 60 Neb. 655, 83 N.W. 916 (1900).

The supersedeas bond requirement contained in this section applies to will contests removed from county court and tried in the first instance in district court pursuant to section 30-2429.01. In re Estate of Sehi, 17 Neb. App. 697, 772 N.W.2d 103 (2009).

4. Who may appeal

Subsection (2) of this section authorizes a protected person's close family members to appeal from a final order in a conservatorship proceeding if they filed an objection and the county court appointed a conservator. In re Conservatorship of Franke, 292 Neb. 912, 875 N.W.2d 408 (2016).

An heir is a party affected by contest of will and may appeal. Clutter v. Merrick, 162 Neb. 825, 77 N.W.2d 572 (1956).

Where bequest was made in trust to executors which county court declared invalid, executors have right to appeal. In re Estate of Creighton, 91 Neb. 654, 136 N.W. 1001 (1912).

Heirs cannot appeal from judgments or orders to which they have consented. In re Estate of Whiton, 86 Neb. 367, 125 N.W. 606 (1910).

Heirs depending upon an incompetent person for support may appeal from order dismissing their petition for appointment of guardian of incompetent. Tierney v. Tierney, 81 Neb. 193, 115 N.W. 764 (1908).

Appeal may be taken by any person affected. Gannon v. Phelan, 64 Neb. 220, 89 N.W. 1028 (1902).

Administrator who makes general objection to claim in probate court, and on appeal answers charging that claim is fraudulent, raises no new issue. Graham v. Estate of Townsend, 62 Neb. 364, 87 N.W. 169 (1901).

An heir may be substituted for administrator, where administrator had wrongfully compromised claims, to set aside order and prosecute action to recover claim due estate. Tecumseh Nat. Bank v. McGee, 61 Neb. 709, 85 N.W. 949 (1901).

One not prejudiced cannot appeal from order discharging executor. Cowherd v. Kitchen, 57 Neb. 426, 77 N.W. 1107 (1899).

One sued by administrator cannot petition to vacate appointment, and not being affected, cannot appeal. Missouri P. Ry. Co. v. Jay, 53 Neb. 747, 74 N.W. 259 (1898).

One of several defendants, who have separate and distinct defenses, may appeal; if interests are inseparably connected, appeal brings up whole case. Polk v. Covell, 43 Neb. 884, 62 N.W. 240 (1895).