60 Neb. 716 | Neb. | 1900
This cause is submitted on a printed abstract of the record, and briefs of counsel. From the record it appears that in the due course of administration of the estate of Alice M. Coleman, deceased, had in the probate court of Gage county, there was filed on the 9th day of October, 1897, a claim against said estate in the form of a promissory note, executed by the said Alice M. Coleman. On November 15, the claim was allowed by the probate judge as a proper demand against the estate, the order of allowance being evidenced by the following record of indorsement on the claim filed for allowance: “Allowed for $355.33 this Nov. 15, 1897. M. B. Davis* County Judge.” On the note was the following entry or indorsement: “This Nov. 15, 1897, allowed against the estate of E. W. Coleman and also Alice M. Coleman. M. B. Davis, County Judge.” There appears from the record presented no proceedings in said estate had prior thereto, and we assume that a proper notice had been given for the filing of claims against the estate and fixing a day for their allowance and adjustment, and that in pursu
The p1fl.iut.iff in error bases his argument in favor of a reversal of the judgment of the district court upon the proposition that the judgment of allowance of the claim in controversy was not rendered until April 27, on the same day the claim was disallowed, and that, therefore,
“In re Estate of Alice M. Coleman, deceased.
“Claim of State Bank of Humboldt, Nebraska, against the estate of Alice M. Coleman, deceased, was filed October 9, 1897, a copy of which is as follows:
“In the County Court of Gage County, Nebraska.
“In the matter of the estate of A. M. Coleman, Deceased,
“In Account with State Bank of Humboldt, Nebraska. “Address, Humboldt, Nebraska.
Dr Or.
“$350.00. Humboldt, Neb., Apr. 11, 1897.
“Ninety days after date we, or either of us, promise to pay to the order of the State Bank of Humboldt, three hundred fifty and no 100 dollars, for value received, with ten per cent interest per annum from maturity until paid.
“Due Sept 20 97. No. 5092. R. W. Coleman.
“P. O. Beatrice, Nebr. A. M. Coleman.
“[On the margin]: Payable a,t the State Bank of Humboldt, Humboldt, Nebraska,.
“Said claim is indorsed as follows: ‘Allowed for $355.33 this Nov. 15th, 1897. M. B. Davis, County Judge.’
“Said note is indorsed as follows: ‘This> Nov. 15, 1897, allowed against the estate of R. W. Coleman and also Alice M. Coleman. M. B. Davis, County Judge.’
“I hereby certify that the foregoing record was made April 27th 1898 in the county court of Gage county, Nebraska. M. B. Davis, County Judge.”
We are unable to agree with counsel in his contention in this regard. We think it is established by the record that the order allowing the claim was made as certified in the record, on November 15, 1897. It was on this date, as shown by the record, that the judgment was rendered, and the fact that it was not journalized or spread at large upon the record until April 27 does not militate against its validity as a binding judgment from the time of its actual rendition. The executor, in his motion to vacate the judgment and grant a rehearing, has recognized the judgment as having been rendered at the time it purports to be. The entry of the judgment on the record of the probate court is the evidence of its rendition, but is not the act of judicially determining the case and making the order of allowance. It is the evidence of the judgment that was rendered by the probate judge, and proves its rendition to have been made on November 15, previous. The order of the probate judge allowing the claim in controversy as a proper demand against the estate was valid and binding, and had the force and effect of a judgment against the estate, until appealed from, or, by other proceedings, reversed or vacated in some of the modes prescribed by statute. McCormick v. McCormick, 53 Nebr., 255; Sheedy v. Sheedy, 36 Nebr., 373; Yeatman v. Yeatman, 35 Nebr., 422; Rogers v. Redick, 10 Nebr., 332. The judgment of the probate court was not the act of recording the judgment entered on the probate record on April 27, but that which it considered, adjudged and decided on November 15 previous, when, acting upon a matter over which it had authority and jurisdiction, it allowed the claim presented as a legal demand against the estate for the sum of $355.33. Freeman, Judgments, sec. 38; Van Orman v. Phelps, 9 Barb. [N. Y.], 500; Fleet v. Youngs, 11 Wend. [N. Y.], 522, 528; Crim v. Kessing, 89
By section 602 of the Code, provision is made whereby in the county and district courts judgments or orders may be reversed, vacated or modified by the court rendering them after the term at which rendered for any of the reasons therein mentioned. In this case, under the motion to vacate the judgment, no reasons were assigned which are contemplated in the section referred to. In fact, no grounds for setting aside the judgment are presented. All that,is claimed as a basis for the proposed action is that the representative of the deceased person had a valid defense against the claim allowed by the probate judge. This alone is not sufficient; there must also exist as a cause for vacating a judgment some of the grounds mentioned in the statute. We are cited to a number of authorities holding to the proposition that the time for talcing an appeal does not begin until the enrollment or entry of the judgment sought to be appealed from. We do not think the principles alluded to governing appeals are applicable to the statute with reference to applications to vacate or modify judgments after the term at which rendered. Whether or not the entry of the judgment at the date mentioned constitutes an irregularity in obtaining it, as is said in Slater v. Skirving, supra, it is not necessary to determine. The general rule is that a judgment is rendered, and the time begins to run, from the time it is announced as the decision of the court having jurisdiction over the matter decided.
It follows that the judgment of the district court is right, and should be affirmed, which is accordingly done.
Affirmed.