Durland Trust Co. v. Uttley

103 Neb. 461 | Neb. | 1919

Sedgwick, J.

The plaintiff recovered a judgment against these defendants in the district court for Holt county foreclosing a real estate mortgage. An order of sale was issued on the judgment. Sale was made and duly reported to the court. Objections to the confirmation were filed, and, before the sale was confirmed, the judgment was paid in full and the cause formally dismissed upon the record. Afterwards the defendants filed a motion to reinstate the case upon the docket, and to set aside and cancel the decree and judgment “for fraud practiced by the plaintiff in said actioh upon the court as well as upon these defendants.” The motion closed with a prayer that upon the final hearing the defendants may have judgment against the plaintiff for “the sum of $274.99, the amount by them so wrongfully and unlawfully received and collected. ’ ’

The motion states no ground for relief, unless it may be regarded as a petition for damages on account of the alleged frauds, and for that purpose, of course, fails to state a cause of action in not alleging when the frauds were discovered and why they were not sooner brought to the attention of the court. When the defendants, who were virtually the plaintiffs in the proceeding, offered their evidence, the plaintiff objected to proceeding with the trial “for the reason the court has no jurisdiction over the person of the plaintiff or over the subject-matter.” It was then stipulated that the foregoing objection should apply to all of the evidence, and the trial proceeded. The court, of course, had jurisdiction of the action for fraud, and defendants had already taken, such steps as amounted to an appearance. The whole proceeding is a peculiar one, and we cannot say that, upon the issues actually submitted to and tried by the court, the evidence is insufficient to support the findings of the trial court.

The judgment of the district court is therefore

Aekgrmed.