            Decisions   of the Nebraska Court of Appeals
	                     OLD HOME ENTERPRISE v. FLEMING	705
	                           Cite as 20 Neb. App. 705

                    Old Home Enterprise, appellee, v.
                    Ian Fleming et al., appellees, and
                      Subway, garnishee-appellant.
                                    ___ N.W.2d ___

                        Filed April 16, 2013.     No. A-12-484.

 1.	 Appeal and Error. Although an appellate court ordinarily considers only those
      errors assigned and discussed in the briefs, the appellate court may, at its option,
      notice plain error.
 2.	 Courts: Appeal and Error. The district court and higher appellate courts gener-
      ally review appeals from the county court for error appearing on the record.
 3.	 Appeal and Error. Plain error is error plainly evident from the record and of
      such a nature that to leave it uncorrected would result in damage to the integrity,
      reputation, or fairness of the judicial process.
 4.	 Dismissal and Nonsuit. The only way to ensure that an unserved action stands
      dismissed, as required by statute, is to hold that such dismissal occurs by opera-
      tion of law, without predicate action by the trial court.
 5.	 Dismissal and Nonsuit: Service of Process. Service of process effected more
      than 6 months after the petition was filed at a time when the action stood
      dismissed does not negate the dismissal pursuant to Neb. Rev. Stat. § 25-217
      (Reissue 2008).
  6.	 ____: ____. A voluntary appearance, which is the equivalent of service of proc­
      ess, is a nullity in a dismissed action.
 7.	 Dismissal and Nonsuit: Service of Process: Jurisdiction. When a lawsuit is
      dismissed by operation of law for lack of service of process within 6 months
      of filing, the trial court has no jurisdiction to make orders thereafter, except
      to formalize the dismissal, and if made, they are a nullity, as are subse-
      quent pleadings.
 8.	 Actions: Jurisdiction: Dismissal and Nonsuit. Lack of subject matter jurisdic-
      tion may be raised at any time by any party or by the court sua sponte, and
      because Neb. Rev. Stat. § 25-217 (Reissue 2008) is self-executing, the action is
      dismissed 6 months after the complaint was filed.
 9.	 Dismissal and Nonsuit: Words and Phrases. The words “any defendant” in the
      statutory language of Neb. Rev. Stat. § 25-217 (Reissue 2008) mean the dismissal
      is indicated only as to the defendant who is not served, not all of the defendants
      in the action.
10.	 Judgments: Debtors and Creditors: Garnishment. Garnishment is a legal aid
      in the execution of a judgment; it is a method by which a judgment creditor can
      recover against a third party for the debt owed by a judgment debtor.

   Appeal from the District Court for Douglas County, James
T. Gleason, Judge, on appeal thereto from the County Court
for Douglas County, Sheryl L. Lohaus, Judge. Judgment of
District Court reversed, and cause remanded with directions to
vacate and dismiss.
   Decisions of the Nebraska Court of Appeals
706	20 NEBRASKA APPELLATE REPORTS



   Angela M. Minahan, of Reinsch, Slattery, Bear & Minahan,
P.C., L.L.O., for garnishee-appellant.
  Lawrence G. Whelan and Dennis G. Whelan, of Whelan
Law Office, for appellee Old Home Enterprise.
  Irwin, Moore, and Pirtle, Judges.
  Pirtle, Judge.
                      INTRODUCTION
   Subway, as garnishee, appeals from the order of the dis-
trict court for Douglas County which affirmed the judg-
ment of the county court for Douglas County overruling a
“Motion to Set Aside Judgment” and a “Motion to Quash
Execution.” Subway became involved in this case when Old
Home Enterprise (Old Home) sought garnishee liability for
the debt purportedly owed by Subway’s employee, Travis
Becker, a defendant in the underlying action. For the reasons
that follow, we reverse, and remand the cause with directions
to vacate and dismiss.
                       BACKGROUND
   On December 29, 2009, Old Home filed a complaint against
Ian Fleming, Becker, Jason Vleck, Justin Valentine, and David
Moore for breach of a rental contract. For purposes of this
appeal, we focus on the case only as it relates to Becker.
   On January 21, 2010, Old Home was notified that Becker
was not served as required by Nebraska law because the
sheriff was “unable to locate” Becker. On July 21, Old Home
requested an alias summons for Becker, which was served at
Becker’s mother’s home on July 30. When Becker failed to
appear or plead, Old Home filed a motion for default judgment.
On September 7, the county court entered default judgment
against Becker in the amount of $9,279.97 plus court costs and
attorney fees.
   On December 3, 2010, Old Home made its first attempt
to serve a summons and order of garnishment on Becker’s
employer, Subway. The summons, order of garnishment, and
attached interrogatories were sent by certified mail to the spe-
cific Subway store where Becker worked, in Blair, Nebraska.
        Decisions of the Nebraska Court of Appeals
	               OLD HOME ENTERPRISE v. FLEMING	707
	                     Cite as 20 Neb. App. 705

An employee signed for the documents, and Subway did
not return the interrogatories. On June 22, 2011, Old Home
attempted service on Subway in the same manner, and Subway
did not respond in any manner.
   Old Home then filed an application for a continuing lien
against Subway and an application to determine garnishee
liability. The county court for Douglas County issued an order
for hearing to be served on Subway, and it was sent by certi-
fied mail. Becker signed for the document at the Subway store
in Blair.
   The hearing to determine garnishee liability took place on
August 8, 2011. The county court entered judgment against
Subway, imposing garnishee liability for the debt of its
employee, Becker, and issued an order in aid of execution for
the judgment. Subway was found liable to the judgment credi-
tor, Old Home, in the amount of $9,200.78 plus interest and
court costs.
   Subsequently, Subway filed a “Motion to Set Aside
Judgment” and a “Motion to Quash Execution,” and the county
court denied both motions. Subway timely filed a notice of
appeal from the denial of those motions on October 19, 2011,
and the parties appeared before the district court for Douglas
County on January 6, 2012. The district court took the matter
under advisement and affirmed on May 22 the decision of the
county court.
                 ASSIGNMENTS OF ERROR
   Subway failed to specifically assign errors in accordance
with the Supreme Court’s rules of appellate practice. See Neb.
Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2012).
                  STANDARD OF REVIEW
   [1] Although an appellate court ordinarily considers only
those errors assigned and discussed in the briefs, the appellate
court may, at its option, notice plain error. Connelly v. City of
Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012).
                           ANALYSIS
   [2,3] The district court and higher appellate courts generally
review appeals from the county court for error appearing on
   Decisions of the Nebraska Court of Appeals
708	20 NEBRASKA APPELLATE REPORTS



the record. Centurion Stone of Nebraska v. Trombino, 19 Neb.
App. 643, 812 N.W.2d 303 (2012). As stated above, although
an appellate court considers only those errors assigned and
discussed in the briefs, the appellate court may, at its option,
notice plain error. Connelly v. City of Omaha, supra. Plain
error is error plainly evident from the record and of such a
nature that to leave it uncorrected would result in damage to
the integrity, reputation, or fairness of the judicial process. Id.
In this case, a review of the record reveals plain error.
   [4] According to the Nebraska statutes, an “action shall
stand dismissed without prejudice as to any defendant not
served within six months from the date the complaint was
filed.” Neb. Rev. Stat. § 25-217 (Reissue 2008). The only way
to ensure that an unserved action stands dismissed, as required
by statute, is to hold that such dismissal occurs by operation of
law, without predicate action by the trial court. See Vopalka v.
Abraham, 260 Neb. 737, 619 N.W.2d 594 (2000).
   [5,6] Service of process effected more than 6 months after
the petition was filed at a time when the action stood dis-
missed does not negate the dismissal pursuant to § 25-217. See
Vopalka v. Abraham, supra. A voluntary appearance, which
is the equivalent of service of process, is a nullity in a dis-
missed action. See id. Old Home’s complaint against Becker
for breach of a rental contract was filed December 29, 2009,
and was not served until July 30, 2010. During that period,
Becker did nothing that would constitute a voluntary appear-
ance or waiver of process. More than 6 months had elapsed,
and therefore, the action was dismissed by operation of law,
without prejudice.
   [7] When a lawsuit is dismissed by operation of law for
lack of service of process within 6 months of filing, the trial
court has no jurisdiction to make orders thereafter, except to
formalize the dismissal, and if made, they are a nullity, as are
subsequent pleadings. See id.
   This rule is illustrated in Davis v. Choctaw Constr., 280
Neb. 714, 789 N.W.2d 698 (2010), where a complaint was filed
in August 2005 and the defendant was not served until August
2006. The defendant then made an appearance, followed by a
full trial, which resulted in a substantial judgment against it.
         Decisionsof the Nebraska Court of Appeals
	               OLD HOME ENTERPRISE v. FLEMING	709
	                     Cite as 20 Neb. App. 705

The defendant then filed a motion for new trial in which it
asserted the district court lacked jurisdiction to enter the judg-
ment under § 25-217 because the service did not occur within
6 months. The trial court overruled the motion for new trial,
and the defendant’s appeal was heard by the Nebraska Supreme
Court, which reversed the trial court’s decision.
   [8] The Supreme Court stated that lack of subject matter
jurisdiction may be raised at any time by any party or by the
court sua sponte, and because § 25-217 is self-executing, the
action was dismissed 6 months after the complaint was filed.
Davis v. Choctaw Constr., supra. The court held that the trial
proceedings were nullities and that the district court erred in
not vacating the judgment and dismissing the action when the
issue of subject matter jurisdiction was raised in the postjudg-
ment motions.
   Similarly, in this case, Becker was not timely served. The
action against Becker was automatically dismissed under
§ 25-217 when 6 months had passed from the filing of the
action on December 29, 2009. Therefore, the county court
lacked jurisdiction to make any order against Becker after
that time, and the default judgment entered against Becker on
September 7, 2010, is a nullity.
   [9] The Nebraska Supreme Court determined the words “any
defendant” in the statutory language of § 25-217 mean the dis-
missal is indicated only as to the defendant who is not served,
not all of the defendants in the action. See State Farm Mut.
Auto. Ins. Co. v. Allstate Ins. Co., 268 Neb. 439, 684 N.W.2d
14 (2004).
   Therefore, we find the default judgment in the underlying
breach of contract action is set aside as to Becker only. The
other defendants in Old Home’s original complaint are not
affected by this decision.
   Becker is the only defendant in the underlying action who
is employed by Subway, and Subway is only involved as a
garnishee in the instant case because of its employer-employee
relationship with Becker.
   [10] Garnishment is a legal aid in the execution of a judg-
ment; it is a method by which a judgment creditor can recover
against a third party for the debt owed by a judgment debtor.
   Decisions of the Nebraska Court of Appeals
710	20 NEBRASKA APPELLATE REPORTS



Myers v. Christensen, 278 Neb. 989, 776 N.W.2d 201 (2009).
Having determined the default judgment against Becker is a
nullity, we find the subsequent garnishee liability action against
Subway arising out of such default judgment is also a nullity,
because there is no longer any debt owed by Becker. See id. at
993, 776 N.W.2d at 205 (“[t]he claim of a judgment creditor
garnishor against a garnishee can rise no higher than the claim
of the garnishor’s judgment debtor against the garnishee”). For
this reason, the decisions of the county and district courts must
be reversed. The breach of contract case must be dismissed as
to Becker, and Subway cannot be held liable for a garnishment
claim arising from the case against Becker.
                          CONCLUSION
   Having determined the county court issued orders after the
lawsuit against Becker was dismissed by operation of law, we
find there is plain error on the record. The cases against Becker
and Subway must be dismissed.
   We reverse, and remand with directions to the district
court for Douglas County to remand to the county court
for Douglas County, with directions to vacate the county
court’s default judgment of September 7, 2010, as to Becker
and to dismiss the underlying complaint filed December 29,
2009, against Becker only. The district court for Douglas
County is further directed to remand the cause to the county
court for Douglas County with directions to vacate its
order dated August 8, 2011, determining garnishee liability
against Subway and to refund the cash supersedeas bond
to Subway.
	R eversed and remanded with directions
	                      to vacate and dismiss.
