Buchanan v. Dorsey

11 Neb. 373 | Neb. | 1881

Lake, J.

In the view we take of this case our disposal of it must turn upon the decision of a single question, viz., the first raised .in the brief of counsel for the defendants in error, which is, that Buchanan, by asking for and obtaining relief at the bands of the court against the successful plaintiff below, under the “act for the relief of occupying claimants,” waived all objections to the verdict and judgment against him, of which he now complains. And our decision of this question must be in accord with what we believe was the intention of the legislature in passing that act.

Section three (Gen. Statutes, 501) provides “that the court rendering j udgment in any ease provided for by this act, against the occupying claimant, shall, at the request of either party, cause a journal entry thereof to be made, and thereupon a jury shall be impaneled by the court in the usual manner provided by law in civil cases.”

By following sections, the jury thus impaneled are required “to view the premises in question, and then and there, on oath or affirmation, assess the value of all lasting and valuable improvements,” contemplated by the first section of the act; also all “damages, if any, which the said land may have sustained by waste,” etc., and report such finding to the clerk of the court at the appointed time, and on this verdict ■the court is required to render the proper judgment, as in other cases.

A careful examination of the several provisions of this statute leads us to the conclusion that, in the orderly enforcement of it, final judgment in the action against the “ occupying claimant” should, be rendered prior to the taking of any steps for the ascertainment of the value of his improvements. In other words the action for the recovery of the land should be first concluded, and the rights of the parties to it finally determined by judgment duly entered of record. And until this is done, there is no foundation for taking a single step, except it be by consent of parties. To all intents the proceedings authorized by this statute is a new action. It requires the calling of a new jury, puts the parties to the trouble and involves them in the expense of another trial of the questions entirely foreign to those presented in the action for the land.

The record before us shows the proceedings under the relief act to have been somewhat premature and rather irregular, but there is nothing in this particular to affect our present decision. It seems that at once upon the return of the verdict, finding the defendants in error entitled to the lot, and before judgment thereon, the plaintiff in error moved for a jury to assess the value of his improvements as an occupying claimant. By consent of both parties, the same jury that had just served in the ejectment suit, was called, and, after trial had, made a finding, of which no complaint has been heard, in favor of the plaintiff in error, for eight hundred and eighty dollars and eighty cents, for which amount judgment was duly rendered in his favor. After asking and receiving all this at the hands of the court, on the strength of the result of the former action, should he be permitted to question its correctness? As we think, very clearly not. If he believed that the result was unjust and erroneous, and desired a review of the proceedings by -which it was brought about, he should have taken no step showing a voluntary acquiescence therein, but at once pursued the course open to him by petition in error. This, however, he did not do, but elected to recognize its' binding force by seeking and obtaining relief under it. Having done this he is now estopped from seeking relief by proceedings in error.

Judgment aeeirmed.