§ 25-1333 — Case not fully adjudicated on motion

Nebraska § 25-1333

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

If on motion under sections 25-1330 to 25-1336 judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

Legislative History

Source: Laws 1951, c. 65, § 4, p. 199. Annotations: The right of a party to sue as representative of a class may be raised by a motion for summary judgment. Blankenship v. Omaha P. P. Dist., 195 Neb. 170, 237 N.W.2d 86 (1976). Where each party files a motion for summary judgment in the district court, the Supreme Court can consider both motions and determine the controversy. Randall v. Erdman, 194 Neb. 390, 231 N.W.2d 689 (1975). The Summary Judgment Act grants the district court power to enter interlocutory orders eliminating issues upon which no genuine issue of fact is presented and requires a trial and final order or judgment upon the facts that are in good faith controverted. Burroughs Corp. v. James E. Simon Constr. Co., 192 Neb. 272, 220 N.W.2d 225 (1974). Court may specify the facts that appear without substantial controversy, and which facts are established for the trial. Hart v. Ronspies, 181 Neb. 38, 146 N.W.2d 795 (1966). Legislature distinguished summary judgment process from a trial. Otteman v. Interstate Fire & Cas. Co., Inc., 171 Neb. 148, 105 N.W.2d 583 (1960). Summary judgment on issue of liability, and submission of issue of damages to jury, was proper procedure. Rimmer v. Chadron Printing Co., 156 Neb. 533, 56 N.W.2d 806 (1953).