2019 Nebraska Revised Statutes
Chapter 25 - COURTS; CIVIL PROCEDURE
25-516.01 Service; voluntary appearance; defenses.

25-516.01. Service; voluntary appearance; defenses.

(1) The voluntary appearance of the party is equivalent to service.

(2) A defense of lack of personal jurisdiction, insufficiency of process, or insufficiency of service of process may be asserted only under the procedure provided in the pleading rules adopted by the Supreme Court. If any of those defenses are asserted either by motion or in a responsive pleading and the court overrules the defense, an objection that the court erred in its ruling will be waived and not preserved for appellate review if the party asserting the defense either (a) thereafter files a demand for affirmative relief by way of counterclaim, cross-claim, or third-party claim or (b) fails to dismiss a demand for such affirmative relief that was previously filed. If any of those defenses are asserted either by motion or in a responsive pleading and the court overrules the defense, an objection that the court erred in its ruling on any issue, except an objection to the court's ruling on personal jurisdiction, will be waived and not preserved for appellate review if the party asserting the defense thereafter participates in proceedings on any issue other than those defenses.

(3) The filing of a suggestion of bankruptcy is not an appearance and does not waive the defense of lack of personal jurisdiction, insufficiency of process, or insufficiency of service of process.

Source

• Laws 1983, LB 447, § 32;
• Laws 2002, LB 876, § 15;
• Laws 2019, LB308, § 2.
• Effective Date: September 1, 2019

Annotations

• The voluntary appearance of a party is equivalent to service of process for purposes of personal jurisdiction; parties cannot confer subject matter jurisdiction on a court by waiving statutory requirements for a court to obtain jurisdiction through a voluntary appearance. J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893 (2017).

• Judicially noticed filings and the bill of exceptions in a prior modification proceeding between the parties showed that the defendant made a general appearance in the subsequent modification proceeding by asking the trial court to vacate an order, to disqualify the plaintiff's counsel, and to strike the complaint. Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016).

• A voluntary appearance is the equivalent to service that waives a defense of insufficient service or process if the party requests general relief from the court on an issue other than sufficiency of service or process, or personal jurisdiction. Carlson v. Allianz Versicherungs-AG, 287 Neb. 628, 844 N.W.2d 264 (2014).

• A voluntary appearance signed the day before a complaint or petition is filed waives service of process if filed simultaneously with or after the petition. Johnson v. Johnson, 282 Neb. 42, 803 N.W.2d 420 (2011).

• A voluntary appearance of a party is equivalent to service and, in effect, is another mode of service. Nebraska Methodist Health Sys. v. Dept. of Health, 249 Neb. 405, 543 N.W.2d 466 (1996).

• Intended defendant's father, who bore same name as defendant without distinction of "Sr." or "Jr.," had no obligation to assert affirmative defense of lack of jurisdiction or insufficient service either in answer or by motion, in plaintiff's action for personal injuries, as grounds for permitting plaintiff to serve intended defendant rather than dismissing complaint with prejudice; trial court acquired personal jurisdiction over father when father was served, and there was no objection to service of summons on father. Rudd v. Debora, 20 Neb. App. 850, 835 N.W.2d 765 (2013).

• An action stood dismissed by operation of law upon the passing of 6 months after the filing of the petition, where the defendants were not served process and their voluntary appearances were entered more than 6 months after the date the petition was filed. Vopalka v. Abraham, 9 Neb. App. 285, 610 N.W.2d 433 (2000).