There can be no feigned issues; but a question of fact not put in issue by the pleadings may be tried by a jury, upon an order for the trial, stating distinctly and plainly the question of fact to be tried, and such order is the only authority necessary for a trial.
§ 25-103.Feigned issues prohibited; issue not plead; tried, when.
Article 1: Civil Actions Generally · Not amended since original codification · Last verified July 22, 2026
In one sentenceSection 25-103 bars parties from staging a fake lawsuit to obtain an advisory ruling, but lets a real factual dispute the pleadings never raised go to a jury under a court order that states the question plainly.
Full Text of § 25-103
Source
R.S.1867, Code § 4, p. 394; R.S.1913, § 7562; C.S.1922, § 8505; C.S.1929, § 20-103; R.S.1943, § 25-103.
Plain-English Summary
Section 25-103 addresses two related ideas. The first is a prohibition: there can be no feigned issues. A feigned issue was an artificial, collusive lawsuit — parties on both sides agreeing to a made-up dispute solely to get a judge to rule on a point of law, without any real controversy behind it. Nebraska’s code closes that door. Courts decide genuine disputes between adverse parties, not staged ones built to extract an advisory opinion.
The second half of the section handles a narrower, real-world problem: a factual question that matters to the case but that the pleadings themselves never put in issue. Rather than forcing the parties back to the pleadings to manufacture a formal dispute on that point, the section lets the court send the question to a jury directly, by an order for trial. That order has to state the question of fact plainly and distinctly, and once entered, the order itself is all the authority the court needs to hold the trial — no further pleading or amendment is required.
This is a narrow tool, not a general shortcut around pleading. It comes up when a case, often one with equitable elements, turns on a discrete factual point that the pleadings did not frame as a triable issue, and the court decides a jury should resolve it anyway. The mechanics of jury selection, instructions, and verdicts once a case reaches trial are governed by the Nebraska Court Rules rather than by this statute.
Frequently Asked Questions
What is a “feigned issue,” and why does Nebraska law prohibit it?
A feigned issue was a collusive, artificial lawsuit staged to get a court to rule on a legal question without a genuine dispute behind it. Section 25-103 bars that practice, so courts resolve real controversies rather than manufactured ones.
Can a court still send a factual question to a jury if the pleadings never raised it?
Yes. Section 25-103 allows exactly that, through a court order for trial that states the factual question distinctly and plainly.
Does the order for trial need to be accompanied by an amended pleading?
No. The statute states that the order for trial is the only authority necessary for the trial to proceed on that question.
When does a court use this order-for-trial mechanism?
It surfaces when a case — often one involving equitable claims — turns on a discrete disputed fact that the parties’ pleadings did not frame as an issue, and the court wants a jury’s finding on that specific point.
Does Section 25-103 create a general right to a jury trial in every civil case?
No. It addresses how an unpled factual question can reach a jury by court order. Broader questions about the right to a jury trial and how juries are selected and instructed are handled elsewhere, including in the Nebraska Court Rules.
Is a “feigned issue” the same thing as a modern declaratory judgment action?
No. A declaratory judgment action involves a real, adverse dispute over legal rights that a court resolves through ordinary procedure. A feigned issue involved no real adversity at all, which is exactly what this section forbids.
Source & verification. Section text and the amendment-history citation are
reproduced verbatim from the Nebraska Legislature, Revisor of Statutes, enacted by the
Nebraska Legislature. Last verified July 22, 2026. ·
Official source
Also known as: feigned issue nebraskaorder for trial jury questionissue not raised by pleadingscollusive lawsuit prohibited25-103 nebraska statutejury trial on unpled fact question