dissenting.
I regret that I must respectfully dissent from the majority opinion in this case. I do so not so much because I take issue with the result reached by the majority but because I believe that the route taken by the majority to reach that result is inappropriate and, if left alone, may lead others into believing the procedures set out in the majority opinion are appropriate or that the rules suggested are valid.
To begin with, the majority opinion recites:
This is an action in the nature of interpleader and for a declaratory judgment to determine the rights to $6,629.70 which was a part of the proceeds of the settlement of a claim under the Workmen’s Compensation Act by Inola H. Smith against Continental Baking Division of International Telephone & Telegraph Corporation (Continental) and its insurance carrier.
(Emphasis supplied.) While it is true that the plaintiffs alleged that this was an action for interpleader brought pursuant to the provisions of Neb. Rev. Stat. § 25-325 (Reissue 1979), in fact neither the statute nor the law of this jurisdiction would permit interpleader under the facts of this case. The plaintiffs were not only in error when they alleged that the moneys received from the Fund were “subrogated” funds but, as well, when they alleged this was an interpleader.
The majority notes that this action is similar to United *219Services Automobile Assn. v. Hills, 172 Neb. 128, 109 N.W.2d 174 (1961). While it is true that this is similar, there is a material and substantial difference. In the Hills case, supra, the interpleader was filed by the paying carrier, Allstate Insurance Company, which made no claim to any of the money. In the instant action the “interpleader” was filed by the plaintiffs, who claimed an interest in one-third of the money. Under Nebraska law a plaintiff who claims an interest in the money cannot file an interpleader. See § 25-325. In Strasser v. Commercial Nat. Bank, 157 Neb. 570, 572-73, 60 N.W.2d 672, 674 (1953), we said:
[T]he four required elements of the right to interplead ... [are]: “(1) The same thing, debt or duty, must be claimed by both or all of the parties against whom the relief is demanded. (2) All their adverse titles or claims must be dependent, or be derived from a common source. (3) The person asking the relief — the plaintiff — must not have nor claim any interest in the subject-matter. (4) He must have incurred no independent liability to either of the claimants; that is, he must stand perfectly indifferent between them, in the position merely of a stakeholder.”
(Emphasis supplied.) Further, in Strasser, supra at 575, 60 N.W.2d at 675:
Interpleader, although authorized by statute, is an equitable remedy whereby a disinterested stakeholder in possession of property claimed by two or more persons may require them to litigate the claims of each without embroiling him in the controversy.... It is a remedy for an innocent stakeholder who has no liability to any claimant of the property who is and has been perfectly indifferent and completely impartial between them.
See, also, Provident Savings & Loan Ass’n v. Booth, 138 Neb. 424, 293 N.W. 293 (1940).
Regardless of what the plaintiffs may have alleged, this was not an interpleader and was only an action for declaratory judgment. Neither Smith nor Hornstein was a disinterested stakeholder. Instead, they were persons in possession of a check which they could not endorse and in which they claimed an interest.
*220Recognizing, then, that this was an action for declaratory judgment and not interpleader, we have the strange situation in which the majority opinion in effect holds that because the plaintiffs did not seek all of the relief to which they were entitled, they are not entitled to retain the summary judgment which was granted. The majority maintains that while the record before us presents no issue of fact, it does not sustain the judgment entered by the district court. That conclusion apparently is based upon a notion that Smith was entitled to more relief than she asked for under her declaratory judgment.
In the petition filed by Smith and Hornstein, their prayer asks that the court declare that Hornstein and Smith have no legal liability to the defendant “except the 66-2/3% of the subrogated amount of $6,629.70 remaining after Hornstein retains 33-V3% thereof as an attorney fee for his sole efforts in recovering defendant’s subrogation claim.” While Hornstein and Smith were probably wrong in alleging that any amount was due and owing as a “subrogated claim,” they, nevertheless, pleaded the action in that manner and sought a declaration that they owed the Fund two-thirds of the amount recovered. Even if this money did not constitute a “subrogated claim,” for the reasons noted by the majority, nevertheless the rule is well established that this court will not consider questions not presented to or passed on by the district court and upon appeal will dispose of the case upon the theory in which it was tried in the district court. See, Ingerslew v. Bartholomew, 216 Neb. 836, 346 N.W.2d 258 (1984); Lincoln Grain v. Coopers & Lybrand, 216 Neb. 433, 345 N.W.2d 300 (1984).
Our judgment in this case exceeds any relief sought by the plaintiffs and is beyond the pleadings. Had the trial court entered a judgment similar to that which we now enter on appeal, I believe we would have been compelled to reverse the action of the trial court on the basis that the relief exceeded the prayer. It has generally been the rule in this jurisdiction that one may not obtain relief greater than that which is sought by the pleadings. See Davis v. Hall, 70 Neb. 678, 97 N.W. 1023 (1904).
“ ‘It is also a general principle of law that a court cannot set itself in motion, nor has it power to decide questions except as presented by the parties in the pleadings. *221Anything that is decided beyond them is coram non judice and void. Therefore where a court enters a judgment or awards relief beyond the prayer of the complaint or the scope of its allegations the excessive relief is not merely irregular but is void for want of jurisdiction, and is open to collateral attack.’ ”
National Fire Ins. Co. v. Evertson, 153 Neb. 854, 856, 46 N.W.2d 489, 491 (1951). See, also, Drieth v. Dormer, 148 Neb. 422, 27 N.W.2d 843 (1947).
The majority further asserts that “it has not been adjudicated whether the Fund is entitled to recover any of the payments it made to Smith which it now alleges were made by mistake.” My difficulty with that conclusion is the fact that the Fund filed a counterclaim seeking to recover the payments it made to Smith, which request the district court denied. While the Fund appealed from that judgment, it neither assigned as error the fact that the district court found against the Fund on its counterclaim nor did it argue that matter in its brief. Having failed to assign the error and argue it in the brief, this court should not consider the issue, see, Lincoln Co. Sheriff’s Emp. Assn. v. Co. of Lincoln, 216 Neb. 274, 343 N.W.2d 735 (1984), and Cockle v. Cockle, 204 Neb. 88, 281 N.W.2d 392 (1979), and the judgment of the district court in dismissing the Fund’s counterclaim should be considered as a final and binding judgment on the issue. As such, the judgment entered by the district court is res judicata to any other action which might be brought by the Fund in the future. As we noted in Norlanco, Inc. v. County of Madison, 186 Neb. 100, 106, 181 N.W.2d 119, 123 (1970):
“The phase of the doctrine of res judicata precluding subsequent litigation of the same cause of action is much broader in its application than a determination of the questions involved in the prior action; the conclusiveness of the judgment in such case extends not only to matters actually determined, but also to other matters which could properly have been raised and determined therein. The rule applies to every question relevant to and falling within the purview of the original action, in respect to matters of both claim or grounds of recovery, and defense, which *222could have been presented by the exercise of diligence.”
See, also, Caradori v. Hamilton, 193 Neb. 500, 227 N.W.2d 850 (1975).
This is a difficult case, made more difficult by reason of the pleadings and what appear to be erroneous theories pleaded by the plaintiffs. I am afraid our judgment herein does little to relieve those problems. I would have affirmed the judgment of the district court.