82 Neb. 669 | Neb. | 1908
This action involved, the title to the northwest quarter of section 6, township 8, range 33, in Hayes county, Nebraska. Emery R. Wileman, the owner of the land, had mortgaged the same to Stull Brothers, and they sold and assigned the mortgage to the appellant, the Farm Land Company, but the assignment of the mortgage had not been placed of record in Hayes county. In May, 1901, the county of Hayes commenced an* action against Wile-man and wife, William and Louis Stull, the record owners of the mortgage, and other parties to foreclose a tax lien claimed by said county on the land for the delinquent taxes of 1895 to 1899, both inclusive. Personal service of summons was had upon Stull Brothers, and service by publication upon all the other defendants. No administrative sale of the land for these delinquent taxes was had previous to the commencement of this action. A decree was entered in October, 1901, Avhich recites that at the time the action was commenced the sum of $69.20 Avas due the county for delinquent taxes and interest, but that said taxes had been paid since the commencement of the suit, and subsequent to the making of costs in the action to the amount of $22.88. Judgment was entered for these costs, and the land decreed to be sold to satisfy the same if not paid within 20 days from the entry of the decree. The costs not being paid, the land was sold to W. S'. Liston for the sum of $120, and this sale was confirmed March 13, 1902. On May 29, 1902, the sheriff made a deed of the premises to Liston, and on the same day Liston and wife conveyed to John A. Dillon. In November, 1904, Emery R. Wileman served notice upon Liston, Dillon and the county that he would make application to have the decree entered in the case opened up and to be let in to defend. This application was heard by the court on the 25th day of November, 1904, the decree was opened, and Wileman allowed to file an answer. The appellant, the Farm Land Company, then obtained leave to intorArene, and filed its
It is conceded that at the time this action was commenced Wileman was the owner of the land, and that be was a resident of Clay county, Nebraska. The owner of the equity of redemption is an indispensable party to the foreclosure of a tax or other lien. Alexander v. Thacker, 30 Neb. 614. Wileman being an indispensable party, and a resident of this state, a judgment foreclosing his interest in the land, entered against him on service by publication only, is void. Payne v. Anderson, 80 Neb. 216; Wagner v. Lincoln County, 80 Neb. 473. In the case last cited it is said: “A judgment rendered on service by publication against a resident of this state, on whom personal service might have been had, is absolutely void.” In his affidavit to open up the decree in this case Wile-man recites that he is a resident of this state; that at the time of entering the decree he was the owner of the premises; and that during the pendency of the action, and at all times since, he has been a resident of Nebraska; that he had no actual notice of the action in time to appear and make a defense, and no knowledge of the rendition of the decree until about August 25, 1904; that service could have been made upon him in Clay county, Nebraska, where he resided, and that five years had not elapsed since the rendition of the decree. It is evident from reading this affidavit that Wileman supposed that, in order to have the decree set aside, he should proceed under the provisions of section 82 of the code, which allows any-person
In this view we cannot concur. A void judgment is no judgment, and no rights can be acquired under it. A Amid judgment may be set aside at any time upon motion made to the court. Foreman v. Carter, 9 Kan. 674; Hanson v. Wolcott, 19 Kan. 207. The validity of the judgment may be shown by extrinsic proof. Reynolds v. Fleming, 30 Kan. 111; Baldwin v. Burt, 2 Neb. (Unof.) 383. “A court may at any time clear its records of unauthorized and illegal entries therein.” Feikert v. Wilson, 38 Minn. 341. In Heffner v. Gunz, 29 Minn. 108, the supreme court of Minnesota said: “The judgment being void, and not merely irregular, the court was authorized to set it aside upon motion. Lee v. O’Shaughnessy, 20 Minn. 173; Covert v. Clark, 23 Minn. 539. In such a case the lapse of time is not a bar to the granting of the motion.” Nor is it necessary that merits be shown on the part of the defendant. Wendel v. Durbin, 26 Wis. 390; Mackubin v. Smith, 5 Minn. 296. In that same case the court, speaking of the distinction between proceedings in equity to have a void judgment set aside or canceled and proceeding by motion for that purpose, said: “While, upon familiar principles of equity jurisprudence, an ac
In an opinion showing great learning and research the supreme court of Wisconsin held that, where suit was commenced in an existing action, and where, during the pendency of the action, the defendant paid and the plaintiff accepted the full amount claimed and sued for, the court has no jurisdiction to enter judgment for costs. That the costs in an action are but an incident, which necessarily falls when the cause of action ceases to exist. Numerous cases are cited in support of this holding. Two Rivers Mfg. Co. v. Beyer, 74 Wis. 210. Our own court has
We recommend a reversal of the decree appealed from.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Reversed.