H. Gund & Co. v. Horrigan

53 Neb. 794 | Neb. | 1898

Ryan, C.

This action was begun in the district court of Adams county to subject to the payment of a judgment certain real property claimed by William and Catherine Horrigan as a homestead. On January 19, 1893, there was a trial, resulting in findings of certain facts, among which were the findings that William and Catherine Horrigan had a homes! ead interest in the real property, subject and second to a mortgage of $1,400 and accrued interest thereon; that a conveyance of William and Catherine Horrigan to their co-defendant, Peter Horrigan, was in fact and law a mortgage, which Avas subject and inferior to tlie claim of plaintiff, H. Gund & Co., and not a lien upon the premises. While these findings were folloAAred by an order directing that- judgment be entered upon them, there seems to have been no sucli judgment rendered at that time. On May l(i, 1894, there was filed in this ease a paper, which, though, more pretentious in its designation and scope, may be treated as a motion for an entry of judgment nunc pro tunc. Notice of ihe pend-ency of this application Avas' served on the attorneys for Gund & Go., by whom a special appearance Avas filed July 2, 1894, objecting to the jurisdiction of the court for the reason that no summons had been served on their client, and for the further reason that the court had lost jurisdiction of this case. On July 3, 1894, the record discloses that the cause was submitted to the court upon the evidence, oral, written, and documentary, which had been under consideration originally, and that the court thereon made a finding that the property was of the value of $3,400, and that because of the mortgage thereon of $1,400 there was no balance above the homestead exemption subject to the judgment in favor of H. Gund & Co. There was thereupon entered a decree that the judgment in favor of H. Gund & Co. was not a lien on the premises, and the homestead rights of William and Catherine Horrigan were quieted against said judgment. In Van Etten v. Test, 49 Neb. 725, it has been held that where, in fact, a judgment was rendered but not recorded, the court, at any time afterward, had power, independently of statutory authority, nunc pro tunc, to enter a proper judgment against the defendant upon due showing in a proper proceeding. The facts in this case justified the entry of a judgment mino pro tunc, and in legal effect there was but the entry of such a judgment'. There has been pointed out no irregularity in the exercise of this power, and we therefore conclude that no such irregularity exists. The judgment of the district court is accordingly

APFIltMED.