Green v. Morse

57 Neb. 391 | Neb. | 1899

Ibyine, C.

In this case, an appeal from an order granting a perpetual injunction, there is a motion to dismiss the appeal, based on the ground that the order appealed from was made in A’acation and is therefore void. It is said that the October term of the district court of Douglas county was adjourned October 3, 1898, until November 1, 1898, and that the decree was rendered -October 4, during the intermission. At the bar the question argued was whether, where there are seven judges in a district, concurrently holding the district court of a county, six may malee an order of adjournment which will preclude the seventh from thereafter holding court during the allotted period of the term. An inspection of the record discloses no state of affairs raising precisely that question. What does appear is that the October term was begun and held October 3; that on that day an order apparently regular, made “by the court” and signed by six judges, was entered, adjourning the term until the first day of November. It then appears that the decree appealed from was entered October 4 by the one judge who did not sign the order of adjournment. The record does not disclose that it contains all the orders affecting the adjournment and holding of the court. There is a marked distinction between an adjournment sine die of a term of court, and those intermissions which inevitably occur during a term. • A court has the inherent power during the term of suspending business, as occasion may require, from one hour or one day to another. In this respect There is no difference between an adjournment from one day to the next, and an adjournment to a more distant day. In either case the term continues, and while during the intermission the functions of the court are for some ' purposes suspended, still the court remains in existence and it is still term time. The judges do not by such an order lose all power of control over the sessions, and may revoke the order of adjournment and reconvene before the time first fixed. {Bowen v. Stewart, 128 Ind. 507; Wharton v. Sims, 88 Ga. 617; Cole County v. Dallmeyer, 101 Mo. 57.) While this record discloses an apparently regular order of adjournment until November 1, it also discloses the conduct of judicial business October 4, and it must be presumed that .there had been a reconvention of the court and a rescission of the order of adjournment, whether by regular order vacating the former or by action equivalent thereto is not material. {Clough v. State, 7 Neb. 320.) The motion to dismiss the appeal must therefore be overruled.

In what has been said it has not been the intention to convey any inference whatever as to what would be the rights of litigants who, relying on the order of adjournment, had absented themselves for want of notice of the reconvention of the court, or of those who might, although with notice, be unprepared for a trial thus brought on prior to the time on wrhich they might perhaps rely as the earliest when trial could be demanded. This record does not disclose that there was any surprise. Both parties were present and no objection appears to going to trial at the time trial- was had.

We are thus brought to the merits of the appeal. The case was a proceeding in foreclosure. A decree was rendered, a stay taken, the land then sold, the sale con; firmed, and an appeal taken by the defendant from the order of confirmation. By this court the order of confirmation was affirmed. A mandate was.sent to the district court commanding the enforcement of the order. A deed was issued to the purchaser, who demanded possession, and possession was refused. The purchaser then instituted an action in forcible entry and detainer for the recovery of possession of the property. The defendant then filed in the original case a supplemental petition, asking an injunction to restrain the purchaser from prosecuting the forcible entry and detainer case and from interfering with defendant’s possession. It is the order making a temporary injunction of that character perpetual that is appealed from.

We are not favored with a brief in defense of the order of the district court, and we are decidedly of the opinion that it is entirely indefensible. The supplemental petition, aside from reciting the proceedings in the case, alleges that the cause is still pending in the district court to carry out the mandate; that the plaintiff has filed “a pretended deed,” dated and executed 'while the order of confii-mation was superseded by the former appeal; that the property is defendant’s homestead; that the forcible entry and detainer case will necessarily raise the question of title; and that the court where that is depending is therefore without jurisdiction. These averments show no right to relief by injunction. The Code of Civil Pro- eedure, section 1020, expressly makes the remedy of forcible entry and detainer available “in sales of real estate on executions, orders, or other judicial process, when the judgment debtor was in possession at the time of the rendition of the judgment or decree, by virtue of which such sale was made.” It was shown that such was the case here. Where that remedy is given, that and a writ of assistance are concurrent remedies. (Kessinger v. Whittaker, 82 Ill. 22.) The pursuit of the former did not oust the district court of whatever jurisdiction it had retained, and was not an usurpation of that jurisdiction. Nor were the forcible entry and detainer proceedings without jurisdiction because of the averment in the supplemental petition here that they would require an inquiry into the title of land. Even an answer to that effect in the forcible entry, suit would not oust the jurisdiction. The court might still proceed until the evidence should disclose that the question involved was one of title. (Pettit v. Black, 13 Neb. 142; Lipp v. Hunt, 25 Neb. 91.) The averment that the deed to plaintiff was executed while the order of confirmation stood superseded, even if it could give or contribute to the right of an injunction, was not sustained. The answer averred that the deed had been executed before the supersedeas was effected, and that it had not been delivered until after affirmance and the receipt of the mandate. There was no reply, and this averment therefore stood admitted. Moreover, it was proved at the trial. The deed was therefore both executed and delivered while the judgment was enforceable. Of course the averment in the supplemental petition that the premises constituted a homestead Avas of no force whatever to prevent the carrying into effect of a decree unappealed from ordering the sale of the property, and of an order of confirmation following such sale.

It may further be remarked that the only evidence the defendant offered to prove the averments of the supplemental petition was that somewhat remarkable document itself. A pleading in a cause is not competent evidence to prove the facts therein averred.

The judgment of the district court is reversed, the perpetual and the temporary injunctions both dissolved, and the supplemental petition dismissed.

Reversed.