            Decisions      of the    Nebraska Court of Appeals
	                                   STATE v. WULF	211
	                               Cite as 22 Neb. App. 211

objection to the scope of the State’s examination on recross-
examination. We also find any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.
                                                     Affirmed.



                      State of Nebraska, appellee, v.
                         Tim R. Wulf, appellant.
                                    ___ N.W.2d ___

                         Filed July 22, 2014.     No. A-13-288.

  1.	 Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
      admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
      discretion is involved only when the rules make discretion a factor in determin-
      ing admissibility.
 2.	 Evidence. Determining the relevancy of evidence is a matter entrusted to the
      discretion of the trial court, and the trial court’s decision will not be reversed on
      appeal absent an abuse of discretion.
 3.	 Judgments: Collateral Attack. When a judgment is attacked in a manner other
      than by a proceeding in the original action to have it vacated, reversed, or modi-
      fied, or by a proceeding in equity to prevent its enforcement, the attack is a col-
      lateral attack.
 4.	 Collateral Attack: Jurisdiction. Collateral attacks on previous proceedings are
      impermissible unless the attack is grounded upon the court’s lack of jurisdiction
      over the parties or subject matter.
 5.	 Courts. Vertical stare decisis compels lower courts to follow strictly the deci-
      sions rendered by higher courts within the same judicial system.
 6.	 Judgments: Jurisdiction. A decree of court which is void for want of jurisdic-
      tion may be attacked in any proceeding in which any person seeks to assert a
      right under it. It may be attacked whenever it is sought to be enforced, or in any
      suit in which its validity is drawn in question.
 7.	 Courts: Jurisdiction. Under the doctrine of jurisdictional priority, where differ-
      ent state courts have concurrent original jurisdiction over the same subject matter,
      basic principles of judicial administration require that the first court to acquire
      jurisdiction should retain it to the exclusion of another court. That is, a second
      court lacks jurisdiction over the same matter involving the same parties.
 8.	 Double Jeopardy: Evidence: New Trial: Appeal and Error. If reversible error
      exists in a criminal proceeding, an appellate court must determine whether the
      totality of the evidence admitted by the trial court was sufficient to sustain the
      conviction. If it was not, then the concepts of double jeopardy would not allow a
      remand for a new trial.
   Decisions of the Nebraska Court of Appeals
212	22 NEBRASKA APPELLATE REPORTS


  9.	 ____: ____: ____: ____. The Double Jeopardy Clause does not forbid a retrial so
      long as the sum of all the evidence admitted by a trial court, whether erroneously
      or not, would have been sufficient to sustain a guilty verdict.

  Appeal from the District Court for Washington County:
Daniel E. Bryan, Jr., Judge. Reversed and remanded for a
new trial.
  Steven W. Holland, of Holland Law Office, P.C., for
appellant.
  Jon Bruning, Attorney General, and George R. Love for
appellee.
   Irwin, Riedmann, and Bishop, Judges.
   Riedmann, Judge.
                        INTRODUCTION
   Tim R. Wulf was convicted in the Washington County
District Court of theft in excess of $1,500. On appeal, he chal-
lenges the court’s decision to allow into evidence a judgment
from the Washington County Court and an execution of the
judgment issued by the Washington County District Court. He
also claims he should have been allowed to introduce evidence
to collaterally attack the judgment and execution. We find the
district court abused its discretion in refusing to allow a col-
lateral attack on the judgment and, therefore, reverse Wulf’s
conviction and remand the cause for a new trial.
                      BACKGROUND
   On January 12, 2012, Wulf was charged by information with
theft of corn crops in violation of Neb. Rev. Stat. § 28-511
(Reissue 2008). Ownership of the land upon which the crops
grew has been the subject of extensive litigation, beginning in
2002. A general overview of the various judicial proceedings
involving the crops and the land on which they grew is set
forth below.
Prior Proceedings.
   Percy Hue was the original owner of the three parcels of
land at issue in this litigation. Wulf was a beneficiary of Hue’s
        Decisions   of the  Nebraska Court of Appeals
	                          STATE v. WULF	213
	                      Cite as 22 Neb. App. 211

last will and testament, which was admitted to formal probate
by the Washington County Court in July 2002.
    In February 2004, the personal representative of Hue’s
estate filed an action against Wulf and various others in the
Washington County District Court to quiet title to the land. The
district court determined that the personal representative of the
estate was the fee simple title holder of the parcels of land.
That decision was appealed to this court in case No. A-06-951.
On October 30, 2007, we reversed, and remanded to the district
court for further proceedings.
    During the pendency of the appeal, the personal represent­
ative of the estate filed a separate action in the Washington
County Court against Wulf, alleging that Wulf had wrongfully
occupied the premises, despite receiving notice to leave. The
personal representative sought restitution of the land and rents
and profits from 2002 through 2006. After remand of the quiet
title case to the district court, and while that case was still
pending, the county court entered a $103,609 default judgment
against Wulf in the restitution action. As a result of the res-
titution judgment, the personal representative obtained a writ
of execution from the Washington County District Court and
levied on the crops.
    Wulf was personally served with the execution, and a sign
was posted in front of the parcels of land indicating that the
property had been seized; however, Wulf harvested the crops
sometime in November 2009.
Current Proceedings.
   Wulf was charged with theft in excess of $1,500 for the
harvesting of the crops. Prior to trial, Wulf filed a motion in
limine asking that the court prohibit the State from introducing
the restitution judgment and execution as evidence at trial. He
also sought to exclude any evidence that the estate owned the
parcels of land. The State also filed a motion in limine asking
that the court prohibit Wulf from introducing evidence at trial
regarding ownership of the parcels of land or any contest to
the judgment and execution. Wulf argued that the judgment
was invalid, because the county court did not have jurisdiction
to enter it, and that therefore, the subsequent execution was
   Decisions of the Nebraska Court of Appeals
214	22 NEBRASKA APPELLATE REPORTS



also invalid. The court denied Wulf’s motion and granted the
State’s motion, finding that the evidence the State sought to
prohibit was inadmissible, because it was immaterial and irrel-
evant to the issue in the criminal proceeding.
   Wulf was ultimately convicted of theft. He now timely
appeals to this court.
                  ASSIGNMENTS OF ERROR
  Wulf assigns, consolidated and renumbered, that the district
court erred in (1) admitting the restitution judgment and the
execution into evidence and (2) excluding Wulf’s evidence to
collaterally attack the judgment and execution.
                    STANDARD OF REVIEW
   [1,2] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. State v. Ely, 287 Neb. 147, 841 N.W.2d 216 (2014).
Determining the relevancy of evidence is a matter entrusted to
the discretion of the trial court, and the trial court’s decision
will not be reversed on appeal absent an abuse of discretion.
See id.
                         ANALYSIS
   Wulf argues that the district court erred in admitting the
county court’s judgment and the district court’s execution
into evidence because the judgment was void. He claims that
the district court acquired jurisdiction to determine owner-
ship and title to the parcels of land first and that therefore,
the county court lacked subject matter jurisdiction when it
entered the judgment against Wulf. He asserts that because
the county court lacked jurisdiction, its judgment was void
and inadmissible. Likewise, he claims that because the county
court’s judgment was void, it could be collaterally attacked
at any time, and that thus, the court erred in excluding his
evidence at trial which challenged the validity of the county
court’s judgment.
   [3,4] Because Wulf’s arguments on all three assigned errors
hinge on his assertion that the judgment and execution were
        Decisions   of the  Nebraska Court of Appeals
	                          STATE v. WULF	215
	                      Cite as 22 Neb. App. 211

invalid, we first address whether a civil judgment may be col-
laterally attacked in a criminal proceeding. When a judgment
is attacked in a manner other than by a proceeding in the origi-
nal action to have it vacated, reversed, or modified, or by a
proceeding in equity to prevent its enforcement, the attack is a
collateral attack. State v. Smith, 269 Neb. 773, 696 N.W.2d 871
(2005). Collateral attacks on previous proceedings are imper-
missible unless the attack is grounded upon the court’s lack of
jurisdiction over the parties or subject matter. Id.
   Wulf claims that the county court lacked subject matter
jurisdiction and that therefore, the restitution judgment was
void. He relies on State v. Smith, supra, for the proposition
that a judgment entered by a court which lacks subject mat-
ter jurisdiction is void and may be attacked at any time in
any proceeding.
   [5] The trial judge refused to allow the collateral attack,
stating that the civil judgment could not be attacked “in this
type of proceeding.” While we agree with the trial judge that
a collateral attack of a civil judgment in a criminal case is
unusual, we are bound by stare decisis to abide by Nebraska
Supreme Court precedent. See State v. Hausmann, 277 Neb.
819, 765 N.W.2d 219 (2009) (vertical stare decisis compels
lower courts to follow strictly decisions rendered by higher
courts within same judicial system). Therefore, given Nebraska
precedent, we determine that Wulf should have been allowed
to collaterally attack the county court’s restitution judgment in
his criminal trial. See Garrett v. State, 118 Neb. 373, 224 N.W.
860 (1929).
   Garrett involved a petition in error. Robert Garrett had been
convicted of murder in the first degree. At the criminal trial,
Clara Garrett testified against him. Robert and Clara had been
married, but prior to the trial, she had filed for divorce and
a decree was filed. Robert objected to her testimony on the
basis that he and Clara were still married at the time of trial,
because the divorce decree was entered less than 6 months
after he was served with the divorce summons, in violation of
state statute. He claimed the decree was void because the court
did not have jurisdiction to render it. The trial court overruled
his objection.
   Decisions of the Nebraska Court of Appeals
216	22 NEBRASKA APPELLATE REPORTS



    [6] In the petition in error proceeding, the Nebraska Supreme
Court concluded that the divorce decree was void because the
district court was without jurisdiction to hear the case before
the 6-month time period expired. It further stated:
       A decree of court which is void for want of jurisdiction
       may be attacked in any proceeding in which any person
       seeks to assert a right under it. It may be attacked when-
       ever it is sought to be enforced, or in any suit in which its
       validity is drawn in question.
Id. at 378, 224 N.W. at 862. As a result, the court concluded
that the objection to Clara’s testimony should have been sus-
tained and the testimony excluded.
    [7] In the present action, Wulf asserted that the county court
did not have jurisdiction over the restitution case, because the
quiet title action was already pending in district court, and that
therefore, the judgment was void. Under the doctrine of juris-
dictional priority, where different state courts have concurrent
original jurisdiction over the same subject matter, basic prin-
ciples of judicial administration require that the first court to
acquire jurisdiction should retain it to the exclusion of another
court. That is, a second court lacks jurisdiction over the same
matter involving the same parties. Molczyk v. Molczyk, 285
Neb. 96, 825 N.W.2d 435 (2013).
    The quiet title action was brought by the personal represent­
ative against Wulf and others in district court, seeking to quiet
title in the estate to three parcels of land. Subsequent to the
filing of the district court action, the personal representative
brought suit in county court against Wulf, claiming ownership
of the land and seeking restitution for its use. Under the doc-
trine of jurisdictional priority, it would appear that the district
court had jurisdiction of the issues raised in both actions and
that the restitution judgment was void. Under the principle set
forth in Garrett v. State, supra, Wulf should have been allowed
to collaterally attack the county court judgment when it was
offered against him in the criminal proceeding.
    The dissent in Garrett v. State, 118 Neb. 373, 224 N.W. 860
(1929), argued that the divorce decree was evidence of Clara’s
divorce in the criminal proceeding and that if there was to be
         Decisions   of the  Nebraska Court of Appeals
	                           STATE v. WULF	217
	                       Cite as 22 Neb. App. 211

an attack on the decree, it should have occurred in a direct
appeal. The argument is nearly identical to that of the State in
the present action, and therefore, it is rejected.
   Wulf also argues that he should have been able to collater-
ally attack the execution that was issued by the district court.
We do not find Garrett controlling on this issue because it
involved judgments from two equal courts, whereas here, the
execution was issued by the district court and the criminal
proceedings were conducted in the county court. We decline to
address a county court’s authority to inquire into the validity of
a district court’s proceedings, because resolution of the issue
is not necessary to resolve this appeal. See State v. Smith, 284
Neb. 636, 822 N.W.2d 401 (2012).
   Having decided that the trial court abused its discretion in
prohibiting Wulf from collaterally attacking the restitution
judgment, we must decide whether this constituted reversible
error. The State relied upon the judgment to prove the essen-
tial elements of the crime of theft. Without Wulf’s being able
to collaterally attack it, the jury was presented with the judg-
ment as conclusive proof that the land in question belonged to
the estate, that the personal representative was entitled to the
rents and profits in the amount of $103,609, and that Wulf was
indebted to the estate in that amount. We conclude that this
constitutes reversible error.
   [8,9] Having found reversible error, we must determine
whether the totality of the evidence admitted by the district
court was sufficient to sustain Wulf’s conviction. If it was not,
then the concepts of double jeopardy would not allow a remand
for a new trial. See State v. Borst, 281 Neb. 217, 795 N.W.2d
262 (2011). The Double Jeopardy Clause does not forbid a
retrial so long as the sum of all the evidence admitted by a trial
court, whether erroneously or not, would have been sufficient
to sustain a guilty verdict. State v. Borst, supra.
   The evidence presented was sufficient to prove that the
crops harvested by Wulf were property of another, that Wulf
exercised control over them with the intent to benefit himself
or another, and that the crops had a value of more than $1,500.
The cause should therefore be remanded for a new trial.
   Decisions of the Nebraska Court of Appeals
218	22 NEBRASKA APPELLATE REPORTS



                        CONCLUSION
   For the foregoing reasons, we find the trial court abused its
discretion in prohibiting Wulf from collaterally attacking the
county court’s judgment. We therefore reverse the conviction
and remand the cause for a new trial.
                   R eversed and remanded for a new trial.


        Dwayne Sartain and Lisa Sartain, appellants and
        cross-appellees, v. Wohlenhaus A ppraisal Service
          and Dan Spence, appellees, and Countrywide
               Home Loans, a foreign corporation,
                  appellee and cross-appellant.
                                    ___ N.W.2d ___

                         Filed July 22, 2014.    No. A-13-346.

  1.	 Dismissal and Nonsuit: Judgments: Appeal and Error. Denial of a plaintiff’s
      voluntary dismissal of claims presents a question of law, regarding which the
      appellate court reaches a conclusion independent of the lower court’s ruling.
 2.	 Dismissal and Nonsuit. An action may be dismissed without prejudice to a
      future action by the plaintiff, before the final submission of the case to the jury
      or to the court where the trial is by the court.
 3.	 Words and Phrases. A final submission of a case contemplates a submission on
      both the law and the facts, and it exists only when nothing remains to be done to
      render it complete.
 4.	 Directed Verdict: Dismissal and Nonsuit. After a defendant has moved for a
      directed verdict and both counsel have completed their argument on that motion,
      a case is under final submission as contemplated in Neb. Rev. Stat. § 25-601
      (Reissue 2008), and the plaintiff no longer has an absolute right to dismiss with-
      out prejudice.
  5.	 ____: ____. If a motion for directed verdict is made at the close of the plaintiff’s
      case, the plaintiff loses the absolute right to dismiss without prejudice until such
      time as the court overrules the motion.
 6.	 Directed Verdict. A motion for directed verdict is a request for the court to
      decide, as a matter of law, whether there are any questions of fact for a jury
      to decide.
 7.	 Summary Judgment. In a motion for summary judgment, the court is requested
      to determine as a matter of law that no genuine issue of material fact exists and
      that the moving party is entitled to judgment as a matter of law.
 8.	 Dismissal and Nonsuit. A plaintiff has an absolute right to dismiss any time
      before final submission of the case, and when such right exists, the court can
      only exercise discretion in denying dismissal when it would result in the loss of
      a substantial right of the defendant.
