Nebraska Motion to Vacate a Judgment

Introduction

Key Things to Know

1. 1

   Nebraska uses a statute, Neb. Rev. Stat. 25-2001, to vacate or modify a judgment or order. Under 25-2001(1), the inherent power of a district court to vacate or modify its judgments or orders during term may also be exercised after the end of the term, upon the same grounds, upon a motion filed within six months after the entry of the judgment or order. The court decides whether relief is warranted.

2. 2

   Section 25-2001(4) lists separate grounds: (a) for mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order; (b) for fraud practiced by the successful party in obtaining the judgment or order; (c) for newly discovered material evidence which could neither have been discovered with reasonable diligence before trial nor have been discovered with reasonable diligence in time to move for a new trial; (d) for erroneous proceedings against an infant or person of unsound mind if the condition of such defendant does not appear in the record of the proceedings; (e) for the death of one of the parties before the judgment in the action; (f) for unavoidable casualty or misfortune, preventing the party from prosecuting or defending; and (g) for taking judgments upon warrants of attorney for more than was due to the plaintiff when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment. Each must be raised no later than two years after entry, or for an infant or person of unsound mind, two years after removal of the disability.

3. 3

   The deadlines differ by route. The 25-2001(1) motion must be filed within six months after entry. A proceeding on the 25-2001(4) grounds must be commenced no later than two years after entry under 25-2008, unless the party entitled to it is an infant or person of unsound mind, and then no later than two years after removal of that disability.

4. 4

   For a district court judgment, the 25-2001(4) grounds are raised by complaint, not motion. Section 25-2002 says the proceeding shall be by complaint setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action if the party applying was the defendant. A summons then issues and is served as in the commencement of an action.

5. 5

   Do not count on filing to pause collection of the judgment. If you need enforcement held while your motion or complaint is pending, ask the court in writing for a stay, and keep complying with the judgment until the court rules.

6. 6

   County court civil and small claims default judgments have their own track. The Nebraska Judicial Branch self-help page says you may file a Motion to Set Aside Default Judgment and Application for New Trial (form CC 4:9) with the county court instead of filing an appeal, and the motion must be filed within 30 days after the entry of judgment. The form cites Neb. Rev. Stat. 25-1142, 25-1144 and 25-2804.

7. 7

   Section 25-2001(2) says the power of a district court under its equity jurisdiction to set aside a judgment or order as an equitable remedy is not limited by that section. For a default judgment, also see the Nebraska set-aside-default page at /legal-document/set-aside-default/nebraska.

Nebraska Requirements for Motion to Vacate

• Six-Month Motion

  Neb. Rev. Stat. 25-2001(1): the inherent power of a district court to vacate or modify its judgments or orders may be exercised after the end of the term, upon the same grounds, on a motion filed within six months after entry of the judgment or order.

• Listed Grounds in 25-2001(4)

  25-2001(4): (a) clerk mistake, neglect, or omission, or irregularity in obtaining a judgment or order; (b) fraud practiced by the successful party in obtaining the judgment or order; (c) newly discovered material evidence which could neither have been discovered with reasonable diligence before trial nor have been discovered with reasonable diligence in time to move for a new trial; (d) erroneous proceedings against an infant or person of unsound mind not shown in the record; (e) death of a party before judgment; (f) unavoidable casualty or misfortune, preventing the party from prosecuting or defending; (g) warrant-of-attorney judgment for more than was due when the defendant was not summoned or legally notified. Two years after entry.

• Two-Year Limit

  Neb. Rev. Stat. 25-2008: a 25-2001(4) proceeding must be commenced no later than two years after entry, or for an infant or person of unsound mind, no later than two years after removal of the disability.

• Complaint and Summons

  Neb. Rev. Stat. 25-2002: for a district court judgment, the 25-2001(4) proceeding is by complaint stating the judgment, the grounds, and the defense if the applicant was defendant; a summons issues and is served as in the commencement of an action.

• County Court Form CC 4:9

  County court civil and small claims default judgments: Motion to Set Aside Default Judgment and Application for New Trial (CC 4:9), filed with the county court instead of an appeal, within 30 days after entry of judgment.

• District Court Equity Power

  Neb. Rev. Stat. 25-2001(2): a district court's power under its equity jurisdiction to set aside a judgment or order as an equitable remedy is not limited by the section.

• Defense to the Action

  In a 25-2002 complaint brought by a former defendant, set out the defense to the original action with specific facts.

• Ground and Timeliness Statement

  Name the 25-2001 subsection relied on, the date of entry, and why the filing is within six months, two years, or two years after removal of a disability.