§ 24-734 — Judges; powers; enumerated

Nebraska § 24-734

• Jurisdiction: Nebraska
• Ch. 24: Courts

Text

(1) A judge of any court established under the laws of the State of Nebraska shall, in any case in which that judge is authorized to act, have power to exercise the powers conferred upon the judge and court, and specifically to:
(a) Upon the stipulation of the parties to an action, hear and determine any matter, including the trial of an equity case or case at law in which a jury has been waived;
(b) Hear and determine pretrial and posttrial matters in civil cases not involving testimony of witnesses by oral examination;
(c) With the consent of the defendant, receive pleas of guilty and pass sentences in criminal cases;
(d) With the consent of the defendant, hear and determine pretrial and posttrial matters in criminal cases;
(e) Hear and determine cases brought by petition in error or appeal not involving testimony of witnesses by oral examination;
(f) Hear and determine any matter in juvenile cases with the consent of the guardian ad litem or attorney for the minor, the other parties to the proceedings, and the attorneys for those parties, if any; and
(g) Without notice, make any order and perform any act which may lawfully be made or performed by him or her ex parte in any action or proceeding which is on file in any district of this state.
(2) A judgment or order made pursuant to this section shall be deemed effective when the judgment is entered in accordance with the provisions of subsection (3) of section 25-1301 .
(3) The judge, in his or her discretion, may in any proceeding authorized by the provisions of this section not involving testimony of witnesses by oral examination, use telephonic, videoconferencing, or similar methods to conduct such proceedings. The court may require the parties to make reimbursement for any charges incurred.
(4) In any criminal case, with the consent of the parties, a judge may permit any witness who is to be examined by oral examination to appear by telephonic, videoconferencing, or similar methods, with any costs thereof to be taxed as costs.
(5)(a) Unless an objection under subdivision (5)(c) of this section is sustained, in any civil case, a judge shall, for good cause shown, permit any witness who is to be examined by oral examination to appear by telephonic, videoconferencing, or similar methods.
(b) Unless the court orders otherwise for good cause shown, all costs of testimony taken by telephone, videoconferencing, or similar methods shall be provided and paid by the requesting party and may not be charged to any other party. A court may find that there is good cause to allow the testimony of a witness to be taken by telephonic, videoconferencing or similar methods if:
(i) The witness is otherwise unavailable to appear because of age, infirmity, or illness;
(ii) The personal appearance of the witness cannot be secured by subpoena or other reasonable means;
(iii) A personal appearance would be an undue burden or expense to a party or witness; or
(iv) There are any other circumstances that constitute good cause for allowing the testimony of the witness to be taken by telephonic, videoconferencing, or similar methods.
(c) A party may object to examination by telephonic, videoconferencing, or similar methods under subdivision (5)(a) of this section on grounds of unreliability or unfairness. The objecting party has the burden of proving unreliability or unfairness by a preponderance of the evidence.
(d) Nothing in this section shall prohibit an award of expenses, including attorney fees, pursuant to Neb. Ct. R. of Discovery 6-337 .
(6) The enumeration of the powers in subsections (1), (2), (3), (4), and (5) of this section shall not be construed to deny the right of a party to trial by jury in the county in which the action was first filed if such right otherwise exists.
(7) Nothing in this section shall be construed to exempt proceedings under this section from the provisions of the Guidelines for Use by Nebraska Courts in Determining When and Under What Conditions a Hearing Before Such Court May Be Closed in Whole or in Part to the Public, adopted by the Supreme Court of the State of Nebraska September 8, 1980, and any amendments to those provisions.

Legislative History

Source: Laws 1879, § 39, p. 90; Laws 1913, c. 209, § 1, p. 635; R.S.1913, § 1176; Laws 1921, c. 177, § 1, p. 676; C.S.1922, § 1099; C.S.1929, § 27-317; R.S.1943, § 24-317; Laws 1953, c. 64, § 1, p. 208; Laws 1965, c. 111, § 1, p. 435; R.S.1943, (1979), § 24-317; Laws 1983, LB 272, § 1; Laws 1999, LB 43, § 1; Laws 2013, LB103, § 1; Laws 2020, LB912, § 10. Annotations: 1. Constitutionality 2. Jurisdiction at chambers 3. No jurisdiction at chambers 4. Notice 5. Miscellaneous 1. Constitutionality Constitutionality of act is closed question. Beatrice Paper Co. v. Beloit Iron Works, 46 Neb. 900, 65 N.W. 1059 (1896). 2. Jurisdiction at chambers Conditions are specified under which district judges may exercise powers in chambers. Mueller v. Keeley, 163 Neb. 613, 80 N.W.2d 707 (1957). District judge sitting in chambers may impose sentence on plea of guilty. Duggan v. Olson, 146 Neb. 248, 19 N.W.2d 353 (1945). District judge at chambers on ten days' notice, or where hearing is had on stipulation of parties, has jurisdiction to enter an order directing the issuance of a writ of assistance on confirmation of sale of property. Erwin v. Brunke, 133 Neb. 745, 277 N.W. 48 (1938). Judge may confirm sale of land to pay debts by administrator, in vacation, without notice. Brusha v. Phipps, 86 Neb. 822, 126 N.W. 856 (1910). Judge in chambers has jurisdiction to issue mandamus when right is clear. Hopkins v. State ex rel. Omaha Cooperage Co., 64 Neb. 10, 89 N.W. 401 (1902); Wheeler v. State ex rel. Londrosh, 32 Neb. 472, 49 N.W. 442 (1891); Clark v. State ex rel. Dunham, 24 Neb. 263, 38 N.W. 752 (1888). Judge in chambers may appoint receiver. Morris v. Linton, 62 Neb. 731, 87 N.W. 958 (1901). Judge in chambers may receive plea of guilty in felony though prosecution is started in another county. McCarty v. Hopkins, 61 Neb. 550, 85 N.W. 540 (1901). Order may be made in chambers to enforce habeas corpus by contempt proceedings. Nebraska Children's Home Society v. State, 57 Neb. 765, 78 N.W. 267 (1899). Judge in chambers may confirm sale. Beatrice Paper Co. v. Beloit Iron Works, 46 Neb. 900, 65 N.W. 1059 (1896); Lawson v. Gibson, 18 Neb. 137, 24 N.W. 447 (1885). Judge has jurisdiction to dissolve injunction but not to dismiss action. Browne v. Edwards & McCullough Lumber Co., 44 Neb. 361, 62 N.W. 1070 (1895). Order may be made in chambers to compel assignee for creditors to convey to successor. Strunk v. State ex rel. Lipp, 33 Neb. 322, 50 N.W. 14 (1891). Writ of mandamus may be granted in chambers though writ will operate in another county. Linch v. State ex rel. Eckles, 30 Neb. 740, 47 N.W. 88 (1890). Guardian may be licensed in chambers to sell real estate though estate is in another county in district. Dietrichs v. Lincoln & N. W. R. R. Co., 14 Neb. 355, 15 N.W. 728 (1883). Judge may license guardian to sell real estate. Stewart v. Daggy, 13 Neb. 290, 13 N.W. 399 (1882). District judge has jurisdiction to receive plea of guilty in chambers. Canada v. Jones, 170 F.2d 606 (8th Cir. 1948). 3. No jurisdiction at chambers Judge has no jurisdiction in chambers to modify or correct decree of district court by nunc pro tunc except by consent of all parties affected. Nicholson v. Getchell, 113 Neb. 248, 202 N.W. 618 (1925). Judge has no jurisdiction in chambers to enter decree of mortgage foreclosure. Shold v. Van Treeck, 82 Neb. 99, 117 N.W. 113 (1908). Judge has no jurisdiction at chambers to hear and to decide a motion to vacate a judgment made after the term at which judgment was rendered. Kime v. Fenner, 54 Neb. 476, 74 N.W. 869 (1898); Fisk v. Thorp, 51 Neb. 1, 70 N.W. 498 (1897). Judge cannot issue mandamus where facts are in issue. Mayer v. State ex rel. Wilkinson, 52 Neb. 764, 73 N.W. 214 (1897). Judge has no jurisdiction, outside of county where action is pending, to issue order for examination of plaintiff. Ellsworth v. City of Fairbury, 41 Neb. 881, 60 N.W. 336 (1894). Judge in chambers cannot enter decree in mechanics' lien foreclosure. Conover v. Wright, 3 Neb. Unof. 211, 91 N.W. 545 (1902). 4. Notice Trial judge at chamber within his district was not required to give ten days' notice prior to modification of judgment concerning an estate. In re Estate of Weinberger, 207 Neb. 711, 300 N.W.2d 818 (1981). Deficiency judgment entered in chambers without notice was void. In re Estates of Anderson, 149 Neb. 551, 31 N.W.2d 562 (1948). Requirement of ten days' notice to exercise of jurisdiction in chambers may be waived. Smith v. Olson, 44 F.Supp. 456 (D. Neb. 1942). 5. Miscellaneous This section should not be relied upon with respect to an on-the-record transaction which takes place in chambers while court is in session. State v. Carney, 220 Neb. 906, 374 N.W.2d 59 (1985). Without a written stipulation of the parties, a district judge can hear application to modify an award of child support in county where the proceeding is pending, only. Hanson v. Hanson, 195 Neb. 836, 241 N.W. 2d 131 (1976). Statute was not amended by act authorizing district judge to perform official acts at chambers in bank liquidation proceedings. Morrill County v. Bliss, 125 Neb. 97, 249 N.W. 98 (1933). Judge at chambers possesses only such jurisdiction as is conferred by statute. Johnson v. Bouton, 56 Neb. 626, 77 N.W. 57 (1898). Judges at chambers have no inherent authority but only such as the statutes give them. Browne v. Edwards & McCullough Lumber Co., 44 Neb. 361, 62 N.W. 1070 (1895). Order entered in chambers confirming sale is a final order and appealable. State Bank of Nebraska v. Green, 8 Neb. 297, 1 N.W. 210 (1879). Subsection (4) of this section only pertains to allowing a witness to be examined telephonically with the consent of the parties. It does not address permitting a party to appear and participate at trial telephonically. In re Estate of Newman, 25 Neb. App. 771, 913 N.W.2d 744 (2018). Where defendant participated in a sentencing hearing at chambers in a county other than the county in which he was convicted and made no objection as to venue, his implied consent was sufficient to satisfy the consent requirement of subdivision (1)(d) of this section. State v. Bruna, 14 Neb. App. 408, 710 N.W.2d 329 (2006).