However, the appellant did not raise this objection in the district court. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court. Ashland State Bank v. Elkhorn Racquetball, Inc., 246 Neb. 411, 520 N.W.2d 189 (1994); How v. Mars, 245 Neb. 420, 513 N.W.2d 511 (1994); Mid-America Pipeline Co. v. Boehm, 244 Neb. 220, 506 N.W.2d 41 (1993). Therefore, the merits of the appellant's claim will not be considered, since the claim is not properly before this court.
Anderson v. HMO Nebraska, 244 Neb. 237, 505 N.W.2d 700 (1993); Armstrong v. Higgins, 241 Neb. 833, 491 N.W.2d 331 (1992). Moreover, parties cannot confer subject matter jurisdiction on a court by acquiescence or consent; neither may subject matter jurisdiction be created by waiver, estoppel, or conduct of the parties. Anderson, supra; Mid-America Pipeline Co. v. Boehm, 244 Neb. 220, 506 N.W.2d 41 (1993); JEMCO, Inc. v. Board of Equal. of Box Butte Cty., 242 Neb. 361, 495 N.W.2d 44 (1993). Scherbak's claim in small claims court requests that the court award money damages or the return of real property.
Neither may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties. Mid-America Pipeline Co. v. Boehm, ante p. 220, 506 N.W.2d 41 (1993); JEMCO, Inc. v. Board of Equal. of Box Butte Cty., 242 Neb. 361, 495 N.W.2d 44 (1993). For the foregoing reasons, the district court erroneously exercised its ERISA subject matter jurisdiction.