68 Neb. 120 | Neb. | 1903
Lead Opinion
Some time in 1894 John T. Ritchey, one of the plaintiffs in error, and James H. Goodrich purchased 800 acres of land in Hayes county, Nebraska. James E. Seeley, the defendant in error, held a mortgage on the land which Ritchey and Goodrich discharged, giving their own note for $2,650 secured by mortgage in lieu thereof. Foreclosure proceedings were instituted on this mortgage and a decree of foreclosure entered March 24, 1896. A deficiency judgment for $2,050 was ordered by the district court for Hayes county against Ritchey and Goodrich November 23, 1897, but this was not entered of record by the clerk until April 16, 1900,' when the same was ordered journalized. A copy of the order directing the deficiency judgment was filed in the office of the clerk of the district court for Gass county, February 18, 1898, and a transcript of the judgment itself was filed in said county on August 2, 1900. Execution issued on this judgment September 14, 1900, and was returned wholly unsatisfied. For some years previous to these transactions John T. Ritchey was the owner of 240 acres of land in Cass county, which he conveyed to his son Edward on
Some time in 1893 a farm of 120 acres in Cass county, IcnoAvn as the “Walters Farm,” Avas sold under a decree of foreclosure and bid in by John T: Ritchey, as is claimed, for his son, Edward Ritchey, one of. the plaintiffs in error. The sheriff’s deed was made to Edward Ritchey, who took possession and occupied the land, either by himself or his tenants, for three or four years, and until a sale by him to one Henry Bornemeyer, made in 1897. A consideration of this transaction becomes material, for thé reason that it is claimed by the plaintiffs in error that the proceeds of the sale of this farm was paid by Edward to his father on the purchase of the 240-acre farm, the conveyance of which is assailed in this action; while the defendant in error claims that this farm, while standing in- the name of Edward Ritchey, was purchased and paid for by his father, who Avas the real owner thereof and of right entitled to the purchase money.
Complaint is made that the court unduly extended the
Under ordinary circumstances, and with reference to ordinary writings or contracts, this may be true; but here was a pleading prepared by the attorney having full charge of the case, and presumably knowledge obtained from his clients of all the circumstances surrounding it. Clark, who was attorney for both John T. and Edward Ritchey, drew this answer. It is not an uncommon circumstance that an attorney, in preparing a pleading, inadvertently uses the name of one party while intending to name the other. No one has such absolute knowledge of what was intended as the attorney himself. In this case it is undoubtedly true that the evidence is wholly undisputed that Edward Ritchey alone was in possession of the 120-acre farm, either by himself or his tenants, from the time the same was conveyed to him until its sale to Bornemeyer, and his deed to Bornemeyer, which was introduced in evidence, shows conclusively that the clause in the answer above referred to, as follows: • “When said Ritchey conveyed said land to the defendant Henry Bornezneyer, Sr.,” pointed out the Ritchey intended to be named in the answer as Edward Ritchey. Uzzder these -circumstances it may be true that the court could not have been misled by a clerical error in namizzg John T. Ritchey whezi Edward Ritchey was intended. But however that may be, this answer was introduced to contradict the evidence of John T. Ritchey given upon the trial, to the effect that he never had any interest in the land, the court received
Some time after Ritchey and Goodrich had purchased the Hayes county land Ritchey conveyed his interest therein to Goodrich, who assumed and agreed to pay the mortgage indebtedness thereon. Plaintiffs in error offered to show by John T. Ritchey that at the time he conveyed his 210-acre farm to his son he had no knowledge of this deficiency judgment or any claim made therefor, and did not understand that he was liable upon the debt which had been assumed by Goodrich. This evidence was refused by the court and this ruling is assigned as error. The petition in foreclosure was filed in the district court for Hayes county on August 31, 1895; summons was served on John T. Ritchey and Phoebe Ritchey, his wife, in Cass county, Nebraska, September 11, 1895, by delivering to Phoebe Ritchey a copy of the summons, and on John T. Ritchey by leaving a copy at his usual place of residence. It may well be that this copy left for him never came to his knowledge and that he had no personal knowledge of the existence of the suit or the claim made against him. The notice of an application for a- deficiency judgment was served upon him personally in Cass county on August 16, 1899, more than two years after the conveyance to his son which is attacked in this case. As a matter of law it will be conceded, of course, that a conveyance by Ritchey to Goodrich of the Hayes county land and Goodrich’s assumption of the mortgage thereon did not release Ritchey from
Other matters are discussed in the briefs of counsel, bfit as the case will have to be reversed and a new trial awarded bécause of the error already pointed out it will be unnecessary to discuss them, as they will not probably arise on the second trial of the case.
For the reasons above given we recommend that the judgment of the district court be reversed and the case remanded for a new trial.
By the Oourt: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the case remanded for a new trial.
Reversed and remanded.
On motion to vacate the proceedings in the supreme court and dismiss the error proceedings, the following opinion was filed May 6, 1903. Motion sustained:
Sedgwick, J.
James E. Seeley recovered a judgment against John T. Ritchey and Edward Ritchey in the district court for Cass county on the 10th day of January, 1902. On the 25th day of February, 1902, a petition in error ivas filed in this court by the said John T. Ritchey and . Edward Ritchey against the said James E. Seeley to reverse the judgment. No summons in error was issued on this petition, but with the petition in error there was filed in this court a “voluntary appearance” and waiver of the issuance and service of summons in error, which was in writing, and signed by the attorneys who were the attorneys of record for the said James E. Seeley in the district .court.
The said Seeley died four days before the petition in error and “voluntary appearance and waiver” were filed in this court. Afterwards the .cause was regularly submitted to this court for determination without any suggestion of the death of the said Seeley, and at the present term of court a judgment was formally entered herein reversing the judgment of the district court and remanding the cause for further proceedings. Afterward the at
The motion is sustained.
Motion sustained.
Code of Civil Procedure, sec. 584.
This case appears in 89 N. W. 427, as Urlau v. Weeth,
Rehearing
The following opinion on rehearing was filed December 16, 1903. Former decision, Ritchey v. Seeley, ante, p. 127, re-examined and adhered to, Sullivan, O. J., dissenting:
A re-examination of the points involved in the present controversy which were considered and decided at a former hearing is productive of no different result or conclusion from that heretofore, reached and announced in the opinion filed in the case. Ritchey v. Seeley, ante, p. 127. The precise point in controversy is whether under the facts stated in the former opinion this court has acquired jurisdiction over the cause and the parties to the controversy so that it may rightfully review the record
Former decision adhered to.
Dissenting Opinion
dissenting.
I dissent altogether from the reasoning and conclusion of my associates. In this state the writ of error in civil, cases has been abolished. But the right to be heard in such cases in the court of last resort is preserved by the constitution. The procedure is statutory. In actions in equity the cause is removed from the district court to this court by filing here a duly certified transcript of the record. Nothing further is required. Whether the action be legal or equitable, the defeated litigant may, after final judgment, transfer the controversy from the district court to this court by filing here a certified copy of the record and procuring the issuance and service, or written waiver, of the statutory process. When this court has obtained jurisdiction either by appeal or error proceeding, it has authority to make a final disposition of the cause by rendering such judgment as the court below should have rendered. The proceedings in this court in the exercise of jurisdiction acquired under the provisions of title 16, Gode of Civil Procedure, are, as we said in Webster v. City of Hastings, 56 Neb. 245, quite analogous to those in ordinary actions. But certainly the analogy does not
If the legislature had seen fit to do so, notice of any kind might, as in cases of appeal, have been dispensed with altogether, without infringing any constitutional right of the defendant in error. But notice has not been dispensed with. The statute prescribes the conditions upon which a defeated suitor may be heard in this court. If these conditions have been fulfilled in this case, jurisdiction has attached and the order dismissing the proceeding is wrong. The statute provides (section 584, Code of Civil Procedure) that a summons in error shall be issued and served on the defendant in error or his “attorney of record in the original case,” or else (section 585, Code of Civil Procedure) that there shall be a waiver in writing of the issuance and service of the summons by “the defendant in error, or his attorney.” I can come to no other conclusion, after carefully considering the matter, than that the attorney Avho is authorized to accept service is the attorney upon Avhom the statute authorizes service to be made; that is, “the attorney of record in the original case.”. Service upon such attorney is good service whether the defendant in eiTor be living or dead (Link v. Reeves, 63 Neb. 424); and by parity of reasoning a waiver in writing by. such attorney is a good waiver under section 585, Code of Civil Procedure, whether the defendant in error be living or dead. In other words, jurisdiction of the cause is obtained when those things have been done
The written waiver authorized by section 585 was manifestly intended as a substitute for, and the legal equivalent of, the service provided for by section 584. The legislative thought was that whoever may be served ought to have authority to waive service. The writer of the majority opinion is surely mistaken in assuming that the legislature may have authorized waiver of service by an attorney other than the attorney of record in the original case. To permit one not subject to service to waive service would be illogical, and, so far as I know, without precedent in judicial procedure. The suggestion has been made that a proceeding against a dead man is a nullity. But Link v. Reeves is an authority to.the contrary, and there are many others. Hohenthal v. Turnure, 50 Tex. 1; Black v. Hill, 29 Ohio St. 86; Cox v. Whitfield, 18 Ala. 738; Beard v. Hall, 79 N. Car. 506. It would hardly be claimed that the right of a party to remove a case from an inferior court to the district court by appeal would be lost or impaired by the death of his adversary. A party against Whom judgment has been rendered before a justice of the peace or in the county court transfers the cause to the district court by giving a good bond and filing a transcript within the time limited by the statute. The death of the other party after judgment and before the bond is given and the transcript filed does not prevent the jurisdiction of the district court from attaching. In such cases, as in the case we are considering, the law prescribes the conditions upon which a change of forum may be had; and there are no other conditions. The legislature saw no necessity for a revivor, and so it was not made a condition
In the majority opinion it is sought to distinguish this case from Link v. Reeves by pointing out that in the latter case the petition in error and transcript had been filed and the summons issued before the death of Reeves. How is this actually or possibly material? The action had been pending in the district court, and, as a matter of course, it remained there until this court acquired jurisdiction. When did this court acquire jurisdiction? When the summons in error was served, and not before. The service of the process was as essential to a transfer of the litigation as was the filing of the petition in error and transcript. Each step in the proceeding was necessary; each was vain and useless without the other. When Reeves died this court was not possessed of the action, and it had no more authority to hear and determine than it had in this case when Seeley died. Ex parte Munford, 57 Mo. 603. In each case the purpose of the unsuccessful party to remove the litigation to this court was unexecuted when the defendant in error died. In each case the action was still pending in the district court and was not pending here. The fact that the pleading and transcript had been filed with the clerk of this court in one case and not in the other is, it seems to me, without legal significance. In each case the effort to transfer the controversy from the district court to this court during the life of the defendant in error was abortive, and it was no less abortive in one case than in the other.
It is conceded that an appeal will remove a case to this