83 Neb. 751 | Neb. | 1909
' This is an appeal from a decree rendered by the district court for Boone county. The heirs of Christian Johnson, deceased, instituted the suit against Charles A. Swanson and Louise Mollin, alleging that the said Christian Johnson died seized of the northwest quarter of the southeast quarter of section 10, township 22, range 5, in Boone county; that he left surviving him Anna Johnson, his widow, and the plaintiffs, their children,'as his sole heirs at law; that in the administration of the estate, upon the application of the widow, the land was set off to her as her homestead, giving her the title in fee simple, which the court had no power or jurisdiction to do, and the said order was void; that the defendant Charles A. Swanson through several mesne conveyances derives his title from the said Anna Johnson, now deceased; that Swanson had executed a mortgage to the defendant Mollin to secure the sum of $600; and that Johnson’s deed and the Mollin mortgage are clouds upon the title which plaintiffs have inherited from their father, Christian Johnson. The prayer is for a cancelation of SAvanson’s deed and the Mollin mortgage and the removal of the cloud upon their title created thereby. Mollin failed to answer and default was entered against her. Swanson answered and a trial was had, the finding and decree being in favor of plaintiffs. Mollin only has appealed. There is no bill of exceptions.
In the decree of the court the following language occurs: “It is ordered, adjudged and decreed by the court that the alleged mortgage lien of the defendant Louise Mollin on the land in suit, be and the same is hereby, adjudged to be null and void, and not to constitute a lien upon the said premises or a personal liability on the part
It is insisted by the appellees Jarmine and Swanson that appellant has mistaken her remedy; that, if the decree was void or erroneous, the mistake, if such it was, should have been called to the attention of the trial court and a correction requested, and that, in the absence of such proceeding, no appeal can be had. It is also urged that, “if the judgment covered matter not embraced in the issue, it is to that extent void; that there can be no appeal from a void judgment.” Many cases are cited supporting the contentions of appellees, but it is believed that many of them are not in point. It is true, however, that the decree might' have been corrected upon a timely motion seeking that remedy. Whether that proceeding is
That the entry referred to is erroneous and void is apparent. It is of no force, a mere nullity, and may be attacked by direct proceedings as well as collaterally, should the question of its validity ever arise. See Banking House of A. Castetter v. Dukes, 70 Neb. 648; Woodward v. Whitescarver, 6 Ia. 1; Doolittle v. Shelton, 1 Greene (Ia.) 271; White v. Iltis, 24 Minn. 43; Cooper v. American Central Ins. Co., 3 Colo. 318.
The judgment of the district court, in so far as it assumes to adjudicate the rights of the defendants Swanson and Mollin as between themselves, is reversed and the
Reversed.