Saint James Apt. Partners v. Universal Surety Co.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SAINT JAMES APT. PARTNERS v. UNIVERSAL SURETY CO.
Cite as 316 Neb. 419
Saint James Apartment Partners, LLC, et al.,
appellants, v. Universal Surety
Company, appellee.
___ N.W.3d ___
Filed April 25, 2024. 	No. S-23-357.
1. Jurisdiction: Appeal and Error. The question of appellate jurisdiction
is a question of law.
2. ____: ____. Before reaching the legal issues presented for review, it is
the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
3. Jurisdiction: Judgments: Final Orders: Appeal and Error. When an
appellate court lacks appellate jurisdiction because neither a judgment
nor a final order was rendered by the lower court, it may not reach the
merits of the appeal.
4. Jurisdiction: Final Orders: Appeal and Error. When an appeal pre-
sents the two distinct jurisdictional issues of appellate jurisdiction and
the trial court’s lack of subject matter jurisdiction, the first step is to
determine the existence of appellate jurisdiction by determining whether
the lower court’s order was final and appealable.
5. Constitutional Law: Jurisdiction: Appeal and Error. The Nebraska
Constitution expressly provides for such appellate jurisdiction as may be
provided by law.
6. Jurisdiction: Statutes: Appeal and Error. The requirements of a stat-
ute underlying a right to appeal are mandatory and must be complied
with before the appellate court acquires jurisdiction over the subject
matter of the action.
7. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, the party must be appealing from a
final order or a judgment.
8. Judgments: Words and Phrases. Every direction of a court or judge,
made or entered in writing and not included in a judgment, is an order.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:40 AM CDT

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SAINT JAMES APT. PARTNERS v. UNIVERSAL SURETY CO.
Cite as 316 Neb. 419
9. Actions: Words and Phrases. An action is any proceeding in a court
by which a party prosecutes another for enforcement, protection, or
determination of a right or the redress or prevention of a wrong involv-
ing and requiring the pleadings, process, and procedure provided by
statute and ending in a judgment. Every other legal proceeding by
which a remedy is sought by original application to a court is a special
proceeding.
10. ____: ____. A special proceeding occurs where the law confers a right
and authorizes a special application to a court to enforce it; it includes
every special statutory remedy that is not itself an action.
11. ____: ____. Special proceedings and actions are mutually exclusive
categories.
12. Actions: Records: Words and Phrases. While a special proceeding
may be connected with an action in the sense that the application for the
benefit of it and the other papers and orders concerning it may be filed
in the case where the record of the filings in the action is made, it is not
an integral part of the action.
13. Actions: Judgments: Words and Phrases. None of the many steps
or proceedings necessary or permitted to be taken in an action to com-
mence it, to join issues in it, and to conduct it to a final hearing and
judgment are special proceedings.
14. Motions to Dismiss: Actions. A motion to dismiss is merely a step or
proceeding within an overall action and is not a special proceeding.
15. Final Orders: Appeal and Error. To be a final order under the first cat-
egory of Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2022), the order must
dispose of the whole merits of the case and leave nothing for the court’s
further consideration.
16. Judgments: Final Orders. To be a judgment under Neb. Rev. Stat.
§ 25-1301 (Cum. Supp. 2022), the order must dispose of the case by
dismissing it either before a hearing is had upon the merits or after trial
by rendition of judgment for the plaintiff or defendant, and leave noth-
ing for further determination.
17. Final Orders. Finality serves the important purpose of promoting effi-
cient judicial administration and preventing piecemeal litigation.
18. Motions to Dismiss: Claim Preclusion. A dismissal with prejudice
operates as a rejection of the plaintiff’s claims on the merits, and claim
preclusion bars further litigation.
19. Motions to Dismiss: Limitations of Actions. A dismissal without preju-
dice means that another petition may be filed against the same parties
upon the same facts as long as it is filed within the applicable statute
of limitations.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SAINT JAMES APT. PARTNERS v. UNIVERSAL SURETY CO.
Cite as 316 Neb. 419
20. Actions: Complaints: Claims: Dismissal and Nonsuit. When causes of
action or theories of recovery are dismissed without prejudice, a plaintiff
remains free to file another complaint raising those same claims.
21. Actions: Words and Phrases. A cause of action consists of the fact or
facts which give one a right to judicial relief against another. A theory
of recovery is not itself a cause of action.
22. Actions: Pleadings: Words and Phrases. Two or more claims in a
complaint arising out of the same operative facts and involving the same
parties constitute separate legal theories, of either liability or damages,
and not separate causes of action.
23. Dismissal and Nonsuit. An order dismissing a complaint without preju-
dice, which also expressly grants leave to amend, is a nonfinal condi-
tional order.
24. Actions: Dismissal and Nonsuit: Final Orders: Jurisdiction: Appeal
and Error. An involuntary dismissal for a lack of a necessary party,
which leaves nothing remaining for the trial court to do in the action, is
a final order over which an appellate court may exercise jurisdiction.
25. Words and Phrases. A substantial right is an essential legal right, not a
mere technical right.
26. Final Orders: Appeal and Error. A substantial right is affected if an
order affects the subject matter of the litigation, such as by diminishing
a claim or defense that was available to an appellant before the order
from which an appeal is taken.
27. ____: ____. Having a substantial effect on a substantial right depends
most fundamentally on whether the right could otherwise effectively be
vindicated through an appeal from the final judgment.
28. Actions: Parties: Bonds. Neb. Rev. Stat. § 64-109 (Reissue 2018) does
not require a person suing under the official bond of a notary public to
join the notary as a necessary party to the action.
29. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
30. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
31. Statutes. It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
32. Statutes: Legislature. A determination of a statute’s plain meaning pre-
supposes that the Legislature used accepted punctuation.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SAINT JAMES APT. PARTNERS v. UNIVERSAL SURETY CO.
Cite as 316 Neb. 419
33. Statutes: Legislature: Intent. While punctuation cannot control statu-
tory interpretation or construction and cannot prevail against the mani-
fest intent of the Legislature, it is part of a statute and should be consid-
ered to give the statute the construction intended by the drafter.
34. Statutes. The presence or absence of commas in a statute is a factor to
be considered when interpreting a statute.
35. Statutes: Legislature. Where the Legislature uses commas, it seeks to
create separate and independent parts.
36. Statutes. Commas are often used in statutes to set off expressions that
provide additional but nonessential information about a noun or pronoun
immediately preceding.
37. ____. A construction which restricts or removes a common-law right
should not be adopted unless the plain words of the act compel it.
38. Statutes: Legislature: Intent. Absent a clear manifestation of legisla-
tive intent to abrogate the common law, courts interpret statutes with
every intendment in favor of consistency with the common law and will
not interpret statutes in derogation thereof to displace the common law
further than is clearly necessary.
39. Statutes. A court will give effect to a statute that makes the least, rather
than the most, change in the existing body of law.
Appeal from the District Court for Douglas County: Katie
L. Benson, Judge. Reversed and remanded.
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for
appellants.
Shannon L. Doering and Luke F. Vavricek for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
The plaintiffs filed a complaint against a surety company,
alleging a notary public covered under the surety company’s
bond engaged in negligent conduct. The surety company filed
a motion to dismiss, arguing that the plaintiffs failed to join
the notary public as a necessary or indispensable party and
that the complaint failed to state a claim upon which relief

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SAINT JAMES APT. PARTNERS v. UNIVERSAL SURETY CO.
Cite as 316 Neb. 419
can be granted. The district court granted the motion to dis-
miss without prejudice on the ground that Neb. Rev. Stat.
§ 64-109 (Reissue 2018) required the plaintiffs to join the
notary public in the action. The plaintiffs appeal. They con-
tend that the district court misinterpreted the statute and that
the complaint was properly filed without the notary public
named as a party. We hold that an involuntary dismissal for a
lack of a necessary party, which leaves nothing remaining for
the trial court to do, is a final order over which this court may
exercise jurisdiction. And the district court erred in its inter-
pretation of § 64-109 as requiring joinder of the notary as a
necessary party. We reverse, and remand for further proceed-
ings consistent with this opinion.
BACKGROUND
Complaint
In July 2022, Saint James Apartment Partners, LLC (Saint
James); Central States Development, LLC (Central States); and
John C. Foley (collectively the Grantees) filed a civil action
against Universal Surety Company (Universal) in the district
court for Douglas County, seeking damages for certain conduct
by notary public Patrick M. Flood. The Grantees did not join
Flood as a party to the action.
The complaint alleged that Universal had issued a bond
covering Flood in his capacity as a notary public and that
Flood had notarized separate deeds upon which Saint James
and Central States were grantees. According to the complaint,
a deed was delivered at closing by The Catholic Archbishop
of Omaha to Central States. Allegedly, corporate resolutions
authorized the transfer of property to Central States only, and
Flood had notarized each of the deeds upon which Saint James
and Central States were identified as grantees. Thereafter,
Flood directed an employee of TitleCore National, LLC, to
substitute a page in the previously executed and notarized
deed. TitleCore National then filed the altered instrument con-
trary to the corporate resolutions.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SAINT JAMES APT. PARTNERS v. UNIVERSAL SURETY CO.
Cite as 316 Neb. 419
The Grantees asserted that Flood’s conduct “materially
changed and altered the instrument” and “was contrary to
applicable statute.” The Grantees alleged that Flood breached
his statutory duties as a notary public and that Universal,
as surety, was liable for Flood’s negligence, errors, and
omissions.
Motion to Dismiss and
District Court Order
In January 2023, Universal filed a motion to dismiss. After a
hearing, the parties filed briefs and the district court issued an
order granting Universal’s motion to dismiss without prejudice.
While the parties’ briefs on Universal’s motion are not in our
record, the district court considered in its order (1) whether
Flood was a necessary party to the Grantees’ action and (2)
whether the complaint failed to state a claim upon which relief
can be granted.
The court first determined that Flood, as the principal on the
bond, was not a necessary or indispensable party under Neb.
Rev. Stat. § 25-323 (Reissue 2016), Nebraska’s joinder statute.
Quoting Kroncke v. Madsen, 1 it reasoned that “‘[t]he surety
and principal may be joined as defendants in one suit, or the
surety may be sued alone, without any effort having been made
to recover the debt from the principal.’”
However, 	the 	court 	concluded 	that 	the 	Grantees 	were
required to join Flood as a party to the action under § 64-109,
i.e., that he was a necessary party to bring an action under
that statute. Relying on the statute’s plain language, the court
explained that “in order to pursue recovery on Flood’s offi-
cial bond . . . both the notary public and his surety must be
joined.” It explained that this interpretation of § 64-109 is
supported by our reasoning in Trausch v. Hagemeier, 2 wherein
we said that an action against a notary public only—after the
surety was dismissed from the proceedings by operation of
1 Kroncke v. Madsen, 56 Neb. 609, 613, 77 N.W. 202, 204 (1898).
2 Trausch v. Hagemeier, 313 Neb. 538, 985 N.W.2d 402 (2023).

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SAINT JAMES APT. PARTNERS v. UNIVERSAL SURETY CO.
Cite as 316 Neb. 419
law—is not a maintainable action on a bond under § 64-109.
The court did not address whether Flood was acting in his
official capacity as a notary public at the time of the alleged
misconduct. The court granted Universal’s motion and dis-
missed the complaint without prejudice.
The Grantees appeal.
ASSIGNMENTS OF ERROR
The Grantees assign, restated, that the district court erred
by granting Universal’s motion to dismiss and by concluding
that the Grantees’ complaint failed to properly state a claim
due to their failure to join Flood as a party to the action.
STANDARD OF REVIEW
[1] The question of appellate jurisdiction is a question of
law. 3
ANALYSIS
Appellate Jurisdiction
[2-4] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it
has jurisdiction over the matter before it. 4 When an appellate
court lacks appellate jurisdiction because neither a judgment
nor a final order was rendered by the lower court, it may not
reach the merits of the appeal. 5 When an appeal presents the
two distinct jurisdictional issues of appellate jurisdiction and
the trial court’s lack of subject matter jurisdiction, the first
step is to determine the existence of appellate jurisdiction
by determining whether the lower court’s order was final
and appealable. 6
3 See TDP Phase One v. The Club at the Yard, 307 Neb. 795, 950 N.W.2d
640 (2020).
4 Mathiesen v. Kellogg, 315 Neb. 840, 1 N.W.3d 888 (2024).
5 See, e.g., Jennifer T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49 (2018);
Goeser v. Allen, 14 Neb. App. 656, 714 N.W.2d 449 (2006).
6 Webb v. Nebraska Dept. of Health & Human Servs., 301 Neb. 810, 920
N.W.2d 268 (2018).

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SAINT JAMES APT. PARTNERS v. UNIVERSAL SURETY CO.
Cite as 316 Neb. 419
[5,6] The Nebraska Constitution expressly provides for
“such appellate jurisdiction as may be provided by law.” 7
The requirements of a statute underlying a right to appeal
are mandatory and must be complied with before the appel-
late court acquires jurisdiction over the subject matter of
the action. 8
[7,8] Pursuant to Neb. Rev. Stat. § 25-1911 (Reissue 2016),
“[a] judgment rendered or final order made by the district court
may be reversed, vacated, or modified for errors appearing on
the record.” Thus, for an appellate court to acquire jurisdiction
of an appeal, the party must be appealing from a final order or
a judgment. 9 Neb. Rev. Stat. § 25-1301(1) (Cum. Supp. 2022)
defines a “judgment” as “the final determination of the rights
of the parties in an action.” Every direction of a court or judge,
made or entered in writing and not included in a judgment, is
an order. 10
A “final order” is defined by Neb. Rev. Stat. § 25-1902
(Cum. Supp. 2022) as (1) an order affecting a substantial right
in an action, when such order in effect determines the action
and prevents a judgment; (2) an order affecting a substantial
right made during a special proceeding; (3) an order affecting
a substantial right made on summary application in an action
after a judgment is entered; and (4) an order denying a motion
for summary judgment when such motion is based on the
assertion of sovereign immunity or the immunity of a govern-
ment official.
[9] An action is any proceeding in a court by which a party
prosecutes another for enforcement, protection, or determi-
nation of a right or the redress or prevention of a wrong
7 Neb. Const. art. V, § 2.
8 Mathiesen v. Kellogg, supra note 4.
9 Paxton v. Paxton, 314 Neb. 197, 989 N.W.2d 420 (2023).
10 Id.

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Nebraska Supreme Court Advance Sheets
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SAINT JAMES APT. PARTNERS v. UNIVERSAL SURETY CO.
Cite as 316 Neb. 419
involving and requiring the pleadings, process, and procedure
provided by statute and ending in a judgment. 11 Every other
legal proceeding by which a remedy is sought by original
application to a court is a special proceeding. 12
[10-13] A special proceeding occurs where the law confers a
right and authorizes a special application to a court to enforce
it; it includes every special statutory remedy that is not itself
an action. 13 For purposes of § 25-1902, special proceedings
and actions are mutually exclusive categories. 14 While a special
proceeding may be connected with an action in the sense that
the application for the benefit of it and the other papers and
orders concerning it may be filed in the case where the record
of the filings in the action is made, it is not an integral part of
the action. 15 None of the many steps or proceedings necessary
or permitted to be taken in an action to commence it, to join
issues in it, and to conduct it to a final hearing and judgment
are special proceedings. 16
[14] A proceeding brought pursuant to § 64-109 is, as
stated therein, a “civil action.” Such action is governed by
the uniform procedural rules found in chapter 25 of the
Nebraska Revised Statutes. It is a proceeding in a court by
which a party prosecutes another for enforcement, protection,
or determination of a right or the redress or prevention of a
wrong involving and requiring the pleadings, process, and
procedure provided by the statute and ending in a final judg-
ment. And we have held that a motion to dismiss is merely a
11 Schreiber Bros. Hog Co. v. Schreiber, 312 Neb. 707, 980 N.W.2d 890
(2022).
12 Id.
13 See id.
14 See Tegra Corp. v. Boeshart, 311 Neb. 783, 976 N.W.2d 165 (2022).
15 Id.
16 Id.

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SAINT JAMES APT. PARTNERS v. UNIVERSAL SURETY CO.
Cite as 316 Neb. 419
step or proceeding within an overall action and is not a special
proceeding. 17
Thus, to be immediately appealable, the court’s order dis-
missing the action brought pursuant to § 64-109 must qualify
either as a judgment as defined by § 25-1301(1) or as an order
following a proceeding that is a step in the overall action that
affects a substantial right and, in effect, determines the action
and prevents a judgment, as described in § 25-1902(1).
[15-17] We have said that to be a final order under the first
category of § 25-1902, the order must dispose of the whole
merits of the case and leave nothing for the court’s further
consideration. 18 To be a judgment under § 25-1301, the order
must dispose of the case by dismissing it either before a
hearing is had upon the merits or after trial by rendition of
judgment for the plaintiff or defendant, and leave nothing for
further determination. 19 Finality is central to our inquiry and
serves “the important purpose of promoting efficient judicial
administration” 20 and preventing “piecemeal litigation.” 21
The court’s power to dismiss without prejudice is outlined in
Neb. Rev. Stat. § 25-601 (Reissue 2016). It provides:
An action may be dismissed without prejudice to a
future action (1) by the plaintiff, before the final submis-
sion of the case to the jury, or to the court where the
trial is by the court; (2) by the court where the plaintiff
fails to appear at the trial; (3) by the court for want of
necessary parties; (4) by the court on the application of
some of the defendants where there are others whom the
17 See StoreVisions v. Omaha Tribe of Neb., 281 Neb. 238, 795 N.W.2d 271
(2011), overruled on other grounds, E.D. v. Bellevue Pub. Sch. Dist., 299
Neb. 621, 909 N.W.2d 652 (2018).
18 Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012).
19 See, Mathiesen v. Kellogg, supra note 4; Paxton v. Paxton, supra note 9.
20 Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S. Ct. 669,
66 L. Ed. 2d 571 (1981).
21 Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849, 855, 678
N.W.2d 726, 732 (2004).

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SAINT JAMES APT. PARTNERS v. UNIVERSAL SURETY CO.
Cite as 316 Neb. 419
plaintiff fails to diligently prosecute; (5) by the court for
disobedience by the plaintiff of an order concerning the
proceedings in the action. In all other cases on the trial of
the action the decision must be upon the merits. 22
[18-20] A dismissal with prejudice operates as a rejection of
the plaintiff’s claims on the merits, and claim preclusion bars
further litigation. 23 In comparison, a dismissal without preju-
dice usually means that another petition may be filed against
the same parties upon the same facts as long as it is filed
within the applicable statute of limitations. 24 When causes of
action or theories of recovery are dismissed without prejudice,
a plaintiff remains free to file another complaint raising those
same claims. 25
[21,22] A cause of action consists of the fact or facts which
give one a right to judicial relief against another. 26 A theory
of recovery is not itself a cause of action. Thus, two or more
claims in a complaint arising out of the same operative facts
and involving the same parties constitute separate legal theo-
ries, of either liability or damages, and not separate causes
of action. 27
In sum, the proceedings brought before the court by one
party against another and filed under a particular case number
come to an end when dismissed without prejudice; but if the
statute of limitations permits, the plaintiff can file the same
causes of action and theories of recovery again under another
case number. The dismissal is, as described by § 25-601, “with-
out prejudice to a future action.”
[23] We have said that an order dismissing a complaint
without 	prejudice, 	which 	also 	expressly 	grants 	leave 	to
22 § 25-601.
23 Eadie v. Leise Properties, 300 Neb. 141, 912 N.W.2d 715 (2018).
24 See id.
25 Smith v. Lincoln Meadows Homeowners Assn., supra note 21.
26 Ryan v. Streck, Inc., 309 Neb. 98, 958 N.W.2d 703 (2021).
27 InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).

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SAINT JAMES APT. PARTNERS v. UNIVERSAL SURETY CO.
Cite as 316 Neb. 419
amend, is a nonfinal conditional order. 28 However, the district
court in its order in this case did not grant leave to amend.
The court presumably believed amendment could not cure
the defect, because there was no cause of action without the
joinder of the notary. The question presented is whether a trial
court’s order involuntarily dismissing, pursuant to § 25-601,
the entirety of the action “without prejudice,” for want of a
necessary party under § 25-601(3), is a “final determination
of the rights of the parties in an action” under § 25-1301(1) or
an order “affecting a substantial right in an action, when such
order in effect determines the action and prevents a judg-
ment” under § 25-1902(1)(a).
We have expressly held in several cases that certain orders
of dismissal without prejudice are final for purposes of appel-
late jurisdiction. 29 Most apposite to the case at bar, in Carlson
v. Allianz Versicherungs-AG, 30 we held that a prior order of
summary judgment against the plaintiffs due to a lack of a nec-
essary party was in fact an order dismissing the action without
prejudice and was a “final order[]” under § 25-1902.
We cited to Taylor Oil Co. v. Retikis, 31 wherein we dis-
cussed that the absence of a necessary party prevents the court
from making a final determination concerning the controversy
without affecting such party’s interest, and we also cited to
case law for the proposition that when a necessary party has
not been impleaded, the trial court should dismiss the action
28 Nichols v. Nichols, 288 Neb. 339, 847 N.W.2d 307 (2014). See, also,
Schaad v. Simms, 240 Neb. 758, 484 N.W.2d 474 (1992).
29 See, State v. Harris, 292 Neb. 186, 871 N.W.2d 762 (2015); Carlson
v. Allianz Versicherungs-AG, 287 Neb. 628, 844 N.W.2d 264 (2014);
Blankenship v. Omaha P. P. Dist., 195 Neb. 170, 237 N.W.2d 86 (1976);
Akins v. Chamberlain, 164 Neb. 428, 82 N.W.2d 632 (1957); Davis v.
Jennings, 78 Neb. 462, 111 N.W. 128 (1907).
30 Carlson v. Allianz Versicherungs-AG, supra note 29. See, also, Blankenship
v. Omaha P. P. Dist., supra note 29 (dismissal without prejudice after
summary judgment on plaintiff’s ability to represent class was final order).
31 Taylor Oil Co. v. Retikis, 254 Neb. 275, 575 N.W.2d 870 (1998).

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SAINT JAMES APT. PARTNERS v. UNIVERSAL SURETY CO.
Cite as 316 Neb. 419
without prejudice rather than with prejudice. 32 We explained
the district court had determined that the absent party was
necessary to the action and had implicitly determined that the
plaintiffs were not going to ask to bring the absent party into
the action or that they could not do so. 33 “This was a final
order.” 34 We then held that because the plaintiffs did not file
their complaint to vacate within the calendar year of the final
order or within 6 months after entry of the judgment, the court
lacked the power to vacate it. Also, the court lacked the power
under its equity jurisdiction to vacate the judgment, because
the plaintiffs had the adequate remedy at law of appealing the
order dismissing the action without prejudice.
Similarly, in Davis v. Jennings, 35 we specifically rejected the
appellee’s argument that we lacked appellate jurisdiction over
an appeal from the dismissal of an action without prejudice
for lack of personal jurisdiction. We said, “[I]t is sufficient
to say that the judgment of dismissal was a final judgment. It
enabled the plaintiff to appeal, and thus bring the case here for
a review of the whole proceeding.” 36
We later relied on Davis in Akins v. Chamberlain 37 to hold
that an order dismissing without prejudice one of several
causes of action for insufficiency of the statement of facts
to constitute a cause of action was final because it affected a
substantial right and prevented a judgment. This was before
the passage, in 2000, of Neb. Rev. Stat. § 25-1315 (Reissue
2016), which now provides that a final order as to fewer
32 See, Carlson v. Allianz Versicherungs-AG, supra note 29; Taylor Oil Co.
v. Retikis, supra note 31. See, also, e.g., Local Union v. Western Public
Service Co., 140 Neb. 186, 299 N.W. 531 (1941).
33 Carlson v. Allianz Versicherungs-AG, supra note 29.
34 Id. at 638, 844 N.W.2d at 272.
35 Davis v. Jennings, supra note 29.
36 Id. at 465, 111 N.W. at 129.
37 Akins v. Chamberlain, supra note 29.

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SAINT JAMES APT. PARTNERS v. UNIVERSAL SURETY CO.
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than all the claims or fewer than all the parties shall not be
immediately appealable unless the court expressly directs the
entry of a final order and determines there is no just reason
for delay.
However, we note that in Deines v. Essex Corp., 38 we said
that an order dismissing a case without prejudice for want of
prosecution was not final. We held that we lacked appellate
jurisdiction over an appeal from an order of reinstatement
after a prior order dismissed the case without prejudice due
to want of prosecution. 39 We explained that neither the order
of reinstatement, nor the prior order dismissing the case with-
out prejudice for want of prosecution, was a judgment under
§ 29-1301, because they did not address or decide the merits
of the action and made no final determination of the parties’
rights. 40 The order of reinstatement merely returned the case to
the court’s active docket for eventual resolution on the merits,
and “[t]he order of dismissal was without prejudice to a future
action, so it had no impact on the merits of the action.” 41
Although the court’s earlier dismissal “effectively ended the
case, it did so without finally determining the rights of the par-
ties, and was not a judgment.” 42 We did not address whether
the order was final under § 25-1902.
Cases in federal court that have been dismissed without
prejudice and deemed appealable often involve matters of
jurisdiction, venue, or failure to join a party, which, by court
rule, must be dismissed without prejudice. According to sec-
ondary authority, “[t]he reason for permitting appeal is clear
from this brief list—review of an erroneous dismissal can
protect the plaintiff’s right to proceed in the court, and with
38 Deines v. Essex Corp., 293 Neb. 577, 879 N.W.2d 30 (2016).
39 See id.
40 Id.
41 Id. at 580, 879 N.W.2d at 33.
42 Id.

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the alignment of parties, first chosen.” 43 Another authority
makes this same observation, stating that any rule that states
dismissals without prejudice do not result in a final decision
is “not entirely accurate”: 44
Lots of dismissals without prejudice produce a final deci-
sion. Consider jurisdictional dismissals. The dismissal is
necessarily without prejudice, as the district court lacks
jurisdiction to do anything else with the case. And no
one questions that a dismissal for lack of jurisdiction is
final and thus appealable. The same goes for dismissals
due to improper venue or for failure to join a party under
Rule 19. 45
In the majority of state courts, an order involuntarily dis-
missing an action without prejudice is a final, appealable judg-
ment unless the order also grants additional time in which to
file an amended complaint, 46 but not every state has such a
blanket rule regarding the underlying appealability of dismiss-
als without prejudice. 47 Whatever the jurisdiction’s default
position on dismissals without prejudice, however, state courts
appear to agree that an involuntary dismissal of a case without
prejudice and without leave to amend is final when based on
the court’s decision that it lacks a necessary party to the action
or on similar grounds of jurisdiction or venue.
Thus, in Damico v. Royal Ins. Co., 48 the court explained
that despite being “without prejudice,” the order of dismissal
43 15A Charles Alan Wright et al., Federal Practice and Procedure § 3914.6
at 557 (2022).
44 Bryan Lammon, Disarming the Finality Trap, 97 N.Y.U. L. Rev. Online
173, 179 (2022).
45 Id. at 179-80.
46 See 4 Am. Jur. 2d Appellate Review § 157 (2018).
47 See, e.g., State ex rel. State of Ill. v. Jones, 920 S.W.2d 116 (Mo. App.
1996).
48 Damico v. Royal Ins. Co., 383 Pa. Super. 239, 241, 556 A.2d 886, 887
(1989). See, also, e.g., Morton v. Fuller, 264 Ga. App. 799, 592 S.E.2d
460 (2003).

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was final because it was meant to bind the appellant from
bringing another action solely against the defendant and with-
out joining the party the lower court believed to be indis-
pensable under the statute governing the action. Similarly,
in Cooper v. Bikle, 49 the appellate court said that the lower
court’s dismissal without prejudice of the plaintiff’s action for
failure to join a necessary party defendant was a final, appeal-
able judgment because there were no other pending claims
and the plaintiff “was put out of court” regardless of whether
the dismissal was with or without prejudice.
In State ex rel. State of Ill. v. Jones, 50 despite generally
holding that dismissals without prejudice are not final, the
Missouri Court of Appeals held it had appellate jurisdiction
over the lower court’s dismissal of the action without preju-
dice for failure to join a minor child as required by statute
for an action for child support. The appellate court explained
the dismissal without prejudice on those grounds was a final
judgment because it effectively prevented the plaintiff from
refiling the action in its original form or challenging the trial
court’s interpretation of the statute. Later, the Missouri Court
of Appeals elaborated that an appeal can be taken from dis-
missal without prejudice “where the dismissal has the practical
effect of terminating the litigation in the form cast or in the
plaintiff’s chosen forum.” 51
Similarly, in Conrad v. Wilkinson, 52 the court held that
while a dismissal without prejudice is ordinarily not appeal-
able, it “‘may be final and appealable if the plaintiff cannot
cure the defect that led to dismissal, or if the dismissal has the
practical effect of terminating the litigation in the plaintiff’s
chosen forum.’” Thus, the appellate court had jurisdiction to
49 Cooper v. Bikle, 334 Md. 608, 615, 640 A.2d 1120, 1123 (1994).
50 State ex rel. State of Ill. v. Jones, supra note 47.
51 City of Chesterfield v. DeShetler Homes, 938 S.W.2d 671, 673 (Mo. App.
1997).
52 Conrad v. Wilkinson, 901 N.W.2d 348, 350 (N.D. 2017).

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decide the merits of the lower court’s dismissal of the plain-
tiff’s application for lis pendens on the ground that it was
allegedly filed in the wrong court. This was because the order
effectively precluded the plaintiff from relief in the court of
her choosing.
[24] The 	decision 	by 	our 	court 	in 	Carlson 	v. Allianz
Versicherungs-AG is in line with other jurisdictions and is
controlling. 53 An involuntary dismissal for a lack of a neces-
sary party, which leaves nothing remaining for the trial court
to do in the action, is a final order over which an appel-
late court may exercise jurisdiction. As explained in Akins
v. Chamberlain, such an order affects a substantial right and
prevents a judgment. 54
[25-27] A substantial right is an essential legal right, not
a mere technical right. 55 A substantial right is affected if an
order affects the subject matter of the litigation, such as by
diminishing a claim or defense that was available to an appel-
lant before the order from which an appeal is taken. 56 Having
a substantial effect on a substantial right depends most funda-
mentally on whether the right could otherwise effectively be
vindicated through an appeal from the final judgment. 57
If a plaintiff is not permitted to appeal orders of invol-
untary dismissal declaring as a matter of law that an absent
party is necessary to the action, which dismissal must ordi-
narily be “without prejudice,” the plaintiff’s only recourse
will be to refile with the necessary party (assuming that is
possible), and there will never be a means to challenge the
trial court’s legal determination that the party was necessary
to the action. The dismissal without prejudice for lack of a
necessary party has the practical effect of terminating the
53 Carlson v. Allianz Versicherungs-AG, supra note 29.
54 Akins v. Chamberlain, supra note 29.
55 In re Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2d 312 (2006).
56 Tegra Corp. v. Boeshart, supra note 14.
57 In re Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34 (2016).

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litigation in the form cast and preventing the plaintiff from
challenging the trial court’s interpretation of the statute. This
is distinguishable from the dismissal without prejudice for
lack of prosecution addressed in Deines. 58
On its face, the court’s order put the Grantees out of court,
and there was nothing left for the court to do. Because it
granted dismissal without prejudice and did not retain juris-
diction for leave to amend, the order prevented a judgment in
the sense that it prevented a final determination of the rights
of the parties. It in effect determined the action as brought,
preventing the Grantees from refiling their action in its origi-
nal form.
The court’s determination that the notary must be joined in
any action brought pursuant to § 64-109 affected the Grantees’
substantial right to bring the action in their chosen form and
forum as described by law. If the court’s order is not consid-
ered final, the Grantees will not be able to effectively vindicate
their alleged right to bring the action under § 64-109 against
the surety without joining the notary. The court’s order invol-
untarily dismissing, for lack of a necessary party, the entirety
of the Grantees’ action without prejudice and without granting
leave to amend, is a final order pursuant to § 25-1902(1)(a)
over which we have appellate jurisdiction.
Whether Notary Is Necessary
Party Under § 64-109
[28] We turn now to the underlying merits of this appeal.
The question is whether the trial court was correct in determin-
ing that § 64-109 requires a person suing under the official
bond of a notary public to join the notary public and the surety
in the same action. Section 64-109 states:
If any person shall be damaged or injured by the
unlawful act, negligence or misconduct of any notary
public in his official capacity, the person damaged or
injured may maintain a civil action on the official bond
58 Deines v. Essex Corp., supra note 38.

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of such notary public against such notary public, and his
sureties, and a recovery in such action shall not be a bar
to any future action for other causes to the full amount of
the bond.
We hold that § 64-109 does not require a person suing under
the official bond of a notary public to join the notary as a nec-
essary party to the action.
[29-31] Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which
are plain, direct, and unambiguous. 59 In construing a statute, a
court must determine and give effect to the purpose and intent
of the Legislature as ascertained from the entire language
of the statute considered in its plain, ordinary, and popular
sense. 60 It is not within the province of the courts to read a
meaning into a statute that is not there or to read anything
direct and plain out of a statute. 61
[32-36] Additionally, a determination of a statute’s plain
meaning presupposes that the Legislature used accepted punc-
tuation. 62 While punctuation cannot control statutory interpre-
tation or construction and cannot prevail against the manifest
intent of the Legislature, it is part of a statute and should be
considered to give the statute the construction intended by
the drafter. 63 As such, the presence or absence of commas
in a statute is a factor to be considered when interpreting a
statute. 64 Where the Legislature uses commas, it seeks to cre-
ate separate and independent parts. 65 Commas are often used
59 State ex rel. BH Media Group v. Frakes, 305 Neb. 780, 943 N.W.2d 231
(2020).
60 Id.
61 Id.
62 See 82 C.J.S. Statutes § 413 (2022).
63 See id.
64 See id.
65 See id.

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in statutes to set off expressions that provide additional but
nonessential information about a noun or pronoun immedi-
ately preceding. 66 Such expressions serve to further identify or
explain the word they refer to. 67
Section 64-109 provides that any person injured by negligent
or unlawful conduct of a notary public “may maintain a civil
action on the official bond of such notary public against such
notary public, and his sureties, . . . .” The commas in this lan-
guage separate the phrase “and his sureties” from the remain-
ing language in the statute and make the phrase independent.
This suggests the Legislature did not contemplate requiring a
person bringing a claim under § 64-109 to group the notary
public and the surety together in the same action.
The statutory language indicates that a person may elect
to bring an action on the official bond of a notary public by
suing the notary public and that a person may elect to bring
an action on the official bond of a notary public by suing the
surety that issued the bond. The plain language of the statute
does not suggest the injured party must sue the notary pub-
lic and the surety at the same time; nor does it impose any
requirements mandating joinder of the two. Rather, it specifies
only that an action may be brought against the notary public
and against the notary public’s sureties.
Nothing in § 64-109 prohibits an injured person from join-
ing the notary public and his or her sureties in the same action,
but the separation of the language “and his sureties” from the
language authorizing a suit against the notary public discon-
nects the notary public from the notary public’s sureties in
the statute. The plain language of § 64-109 does not require a
person bringing a claim under the official bond of the notary
public to sue the notary public and the surety together.
[37-39] Even if we were to find the language of § 64-109
to be ambiguous, we would reach the same conclusion. A
66 See id.
67 See id.

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construction which restricts or removes a common-law right
should not be adopted unless the plain words of the act com-
pel it. 68 Absent a clear manifestation of legislative intent to
abrogate the common law, courts interpret statutes with every
intendment in favor of consistency with the common law and
will not interpret statutes in derogation thereof to displace the
common law further than is clearly necessary. 69 A court will
give effect to the statute that makes the least, rather than the
most, change in the existing body of law. 70
Common law provided a right to pursue recovery against a
surety independently before seeking recovery from the prin-
cipal, and § 64-109 does not reflect a clear manifestation
of anything different. Under common law, we have held
that mere forbearance to sue a principal will not discharge a
surety. 71 This is because, under principles of suretyship law,
the plaintiff must do some act that releases the principal or
suspends the right to proceed against him or her, and a mere
failure to proceed with the present power of doing so does not
operate as a discharge. 72 Relatedly, we have also recognized
that the creditor or injured party is not required to proceed
first against the principal before recovering from the surety. 73
Instead, the surety and principal may be joined as defendants
in one suit, or the surety may be sued alone, without any effort
having been made to recover the debt from the principal. 74
This rule also applies in the context of claims asserted against
a notary public and his or her sureties. 75
68 See Bishop v. Bockoven, Inc., 199 Neb. 613, 260 N.W.2d 488 (1977).
69 82 C.J.S., supra note 62, § 516.
70 Id.
71 Eickhoff v. Eikenbary, 52 Neb. 332, 72 N.W. 308 (1897).
72 Id.
73 See Kroncke v. Madsen, supra note 1.
74 See, id.; Doran v. Butler, 74 Mich. 643, 42 N.W. 273 (1889).
75 See Kroncke v. Madsen, supra note 1.

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The district court’s reliance on Trausch v. Hagemeier is
misplaced. 76 There, we applied a 4-year statute of limitations
to certain claims of negligence asserted against a notary pub-
lic, because a cause of action against a notary public only was
not an action on a bond under § 64-109. The plaintiffs filed a
complaint asserting negligence claims against a notary public
and her surety for falsely witnessing the execution of certain
documents. While the plaintiffs named the surety as a defend-
ant with the notary public, they failed to serve the surety with
the complaint. Having reasoned the surety was dismissed from
the suit by operation of law, we held the plaintiffs’ claims
against the notary public alone are “not an action against a
notary and her surety and cannot be an action on a bond under
§ 64-109.” 77 For that reason, we characterized the plaintiffs’
claims as ones arising in negligence and concluded a 4-year
statute of limitations applied. 78 We also clarified that because
the surety was ultimately dismissed from the lawsuit, the
proceedings did not affect the rights, if any, of the plaintiffs
against the surety. 79
Nowhere in Hagemeier did this court engage in an interpre-
tive analysis of the plain language of § 64-109. Nor did we
quote the plain language of the statute or clearly identify the
statute’s requirements in the opinion. Furthermore, our state-
ments in Hagemeier appeared to leave open the possibility
of the plaintiffs’ eventually bringing a separate claim against
the surety independently from the notary public. After the
surety was dismissed from the lawsuit, we said the matter
“was not an action on an official bond and the proceedings
did not affect the rights, if any, of the [plaintiffs] against [the
surety].” 80 In short, Hagemeier is distinguishable from the
76 Trausch v. Hagemeier, supra note 2.
77 Id. at 547-48, 985 N.W.2d at 412.
78 Trausch v. Hagemeier, supra note 2.
79 Id.
80 Id. at 553, 985 N.W.2d at 415 (emphasis supplied).

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case at bar and we did not hold therein that a person suing
under the official bond of a notary public must join the notary
public and the surety in the same lawsuit in order to vindicate
rights set forth in § 64-109.
Alternative Grounds Presented
but Not Passed Upon
Universal asks that we affirm the dismissal of the action on
the alternative ground, not reached below, that the Grantees
failed to state a claim because Flood’s alleged breach of statu-
tory duties, negligence, errors, and omissions occurred after
completing the notarial act of signing the deeds. This presents
the novel question of whether alteration or amendment of
certain documents previously executed implicates the notary
public in an official capacity. 81 The appellate court has the
discretion to affirm, as it deems appropriate, a correct result
that was reached below for the wrong reason. 82 However,
remanding to the district court to consider issues it did not
consider previously is especially appropriate when, even if
the court finds the plaintiffs’ claims to be faulty, it is within
the lower court’s discretion to allow the plaintiffs to amend
their pleadings. 83 In our discretion, we find it better to have
the district court rule on this alternative argument in the first
instance and express no view on the merits of the alternative
argument at this time.
81 See Garton v. Title Ins. and Trust Co., 106 Cal. App. 3d 365, 165 Cal.
Rptr. 449 (1980).
82 See In re Interest of Jordan B., 300 Neb. 355, 913 N.W.2d 477 (2018).
See, also, e.g., Behr v. Campbell, 8 F.4th 1206 (11th Cir. 2021); Loftness
Specialized Farm Equipment v. Twiestmeyer, 742 F.3d 845 (8th Cir. 2014);
Jeffrey M. Anderson, Right for Any Reason, 44 Cardozo L. Rev. 1015
(2023).
83 Dodson v. Hillcrest Securities, Nos. 92-2353, 92-2381, 1996 WL 459770
(5th Cir. July 24, 1996) (unpublished disposition listed in table of
“Decisions Without Published Opinions” at 95 F.3d 52 (5th Cir. 1996)).

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CONCLUSION
The district court erred in concluding that § 64-109 requires
joining the notary public and the surety in the same action. We
decline Universal’s invitation to affirm the dismissal on alter-
native grounds not addressed by the lower court. We reverse
the district court’s decision granting Universal’s motion to dis-
miss and remand the cause for further proceedings consistent
with this opinion.
Reversed and remanded.