Phelps v. Wolff, 74 Neb. 44

74 Neb. 44 | Neb. | 1905

Barnes, J.

This is a proceeding in error to reverse an order of the district court for Colfax county directing the entry of a decree nunc pro tunc in a foreclosure suit.

It appears that one Louisa Wolf commenced an action to foreclose a mortgage on certain real estate situated in Colfax county, in the district court for that county against Goodwin W. Phelps, Oweda Phelps, Julius F. Phelps, Charles J. Phelps and Edwin A. Phelps, and on the 7th day of December, 1895, obtained a decree against them. The judge’s notes of the rendition of the decree appear on the court calendar of that date as follows: “Default as to all defendants except as to Julius F. Phelps. Amt. due plff. $802.87, to draw int. at 10 per cent: Decree of foreclosure accordingly, and order of sale in default of payment for twenty days.” That thereafter the clerk journalized the decree, as shown by the court journal, in the words and figures following: “Louisa Wolff v. Goodwin W. Phelps et al. Noav on this 7th day of J ember, A. D. 1895, this cause came on for hearing and trial to the court, and the defendants Oweda Phelps, Goodwin W. Phelps, Charles J. Phelps and EdAvin A. Phelps, Laving "failed to answer or demur, Avei\ each three times called in open court, but came not, and thereby made default, and default is hereby entered against them. On consideration Avhereof the court finds that there is due the plaintiff from the defendant the sum of $802.87, Avhich said amount draAvs interest at the rate of ten per cent, per annum, and the sheriff is hereby ordered to advertise and sell said premises according to hrw, in default of payment for tAventy days.” The foregoing is the only decree or judgment in that action that appears in the records of the court. The defendant, GoodAvin IV. Phelps, at that time applied for and obtained a stay of order of sale, and, after the expiration of such stay, the real estate described in the mortgage Avas offered for sale, but not sold for want of bidders.. Sometime aftenvards the property was sold by the sheriff for the satisfaction of the decree, the sale confirmed, and thereupon the plaintiff applied to the court for a deficiency judgment. Her application was denied, and she appealed to the supreme court, where the order of the trial court was affirmed, for the reason that it did not appear from the record that any final judgment or decree had ever been rendered by the trial court. 3 Neb. (Unof.) 511. After the cause Avas remanded, the plaintiff filed a motion' in the district court for the entry of a proper decree nunc pro tunc. Notice of the application Avas duly served. The defendants appeared and objected to the entry of such decree, and by their objections, among other things, denied all of the allegations' contained in the plaintiff’s application. Thereupon, a trial Avas had, and after the introduction of the evidence in support of the application, the court made an order directing the clerk to enter a decree of foreclosure as of the date of December 7, 1895. To this order the defendants excepted, and to reverse the decree the defendants, EdAvin A. Phelps and ('’liarles J. Phelps, prosecute error.

Tiie plaintiffs in error contend that the defendant has been guilty of gross laches in permitting the journal to stand in its present condition for more than eight years. It appears from the record that the defendant- has been striving to enforce the decree and obtain a deficiency judgment from the date of its rendition to the present time; that the property aauis sold as soon as a purchaser could be found in the ordinary course of procedure; that the sale Avas confirmed, and the defendant herein promptly made application for a deficiency judgment; that her application was denied, and from that order she prosecuted error to this court. She them ascertained for the first time that no final judgment or decree of foreclosure had been entered in the records of the trial conrt, and for that reason the order of the court denying her a deficiency judgment was affirmed. As soon as the cause Avas remanded, the proceeding, which is the foundation of the present action, was commenced, and resulted in the entry of the decree which is now complained of. So it cannot he successfully urged that she has been guilty of laches, as claimed by the plaintiffs.

It is also contended that the former judgment is still in force; that a new judgment cannot be entered until such former judgment is disposed of in some manner, and that the defendant herein is estopped to deny the correctness of the old entry as made. There is nothing in this contention, and it comes Avith poor grace from one Avho has heretofore sought and obtained a judgment of this court by which it is held, in effect, that no final decree had been entered in this case prior to the time of the entry of the one noAV complained of.

The plaintiffs further contend that the (widence is not sufficient to support the judgment or decree complained of. This presents a more serious question. As before stated, all of the allegations of the application Avere denied by the plaintiffs’ objections. The defendant herein introduced as evidence in support of her application, first, the judge’s notes found in the court calendar of the date of December 7, 1895; second, the journalizing of the same made by the clerk; both of Avhich entries are quoted above. She also introduced the application of Goodwin W. Phelps for a stay of order of sale, together with the evidence of George II. Thomas, as follows: “I was in court on the 7th day of December, 1895; Judge Marshall presiding. I heard him pronounce the decree in this case, and at the same time he made entry thereof in the district court calendar. After he had made the entry in the court calendar, he read what he had written and entered therein. I will state, that I am well acquainted Avith the signature of GoodAvin W. Phelps; that the signature attached to exhibit A (AA’hieh is the request for a stay of order of sale) is his signature. I ani well acquainted with the handAvriting in the body of this instrument, exhibit A, and T Avill state that the same is in the handAvriting of one Filial L. Robins.” The above, and foregoing includes all of the evidence offered by the defendant in support of her application. We are satisfied that this evidence is. sufficient to authorize the court to make the proper findings and enter an ordinary decree of foreclosure mine pro 1unc. But it appears that the decree as entered, and which is the basis of this proceeding in error, contains the following: “The court further finds that the defendants Goodwin W. Phelps, Charles J. Phelps, and Edwin A. Phelps, and each of them, are personally liable to the plain!ill' for the payment of said note, and the amount due and owing thereon, and that they, and each of them, are personally liable for any deficiency which may remain after applying (he proceeds of the sale of said premise's to the payment of the amount herein found due and owing.” It seems clear that the evidence of the defendant in support of her application is not sufficient to sustain the finding above quoted. Neither the judge’s notes nor the journalizing thereof by the clerk contain anything whatever in relation to a finding of a personal liability on the note, or a liability of the plaintiffs herein for a deficiency. The evidence of the witness Thomas goes no further than the entries above mentioned. lie simply testified that he was present in court and heard the judge render the decree, and saw him enter his notes on !he calendar, and that he heard him thereafter read such entry. He did not attempt to state what the terms of the judgment which the court actually rendered .were, and ihere is nothing in the record anywhere which would indicate that the court actually made the finding above quoted at the time he rendered his decree. It is 'beyond question that the district court had jurisdiction to order, the decree, which was actually rendered by Judge Marshall on the 7th of December, 1895, entered upon the journal of the court as of that date. Garrison v. People, 6 Neb. 274; Hoagland v. Way, 35 Neb. 387; Wachsmuth v. Orient Ins. Co., 49 Neb. 590; Fisk v. Osgood, 2 Neb. (Unof.) 100; Creedon v. Patrick, 3 Neb. (Unof.) 459; Morrill v. McNeill, 3 Neb. (Chof.) 220. The present presiding judge could have no personal knowledge of the terms of the decree which was actually rendered, because it was not rendered by him. He is the successor of Judge Marshall, who rendered the judgment, and who is now deceased. A nunc pro tunc judgment must conform to and be no broader in its terms than the one originally rendered. We find no evidence in the record showing, or even tending to show, that the judge of the district court, when he rendered the judgment of December 7, 1895, made any .finding whatever as to the liability of the plaintiffs herein for a deficiency. So we conclude that the. evidence is insufficient to sustain the finding contained in the present judgment on that point.

For this reason, so much of the judgment complained of as relates to the personal liability of the plaintiffs for a deficiency is reversed, and the judgment of the district court is in all other things affirmed, and the cause is remanded for further proceedings upon the application for a deficiency judgment.

Judgment accordingly.