Van Etten v. Leavitt

90 Neb. 461 | Neb. | 1911

Fawcett, J.

This suit was instituted in the district court for Douglas county, to set aside a decree entered in that court, in the case of William Medland against plaintiffs, in a suit for the foreclosure of a tax lien on sublot 13 of lot 9, Capital addition to the city of Omaha. Florence P. Leavitt, trustee, John W. McDonald, as sheriff of Douglas county, and the Passumpsic Savings Bank, a corporation, were made defendants. Subsequently Charles B. McDonald, administrator of the estate of John W. McDonald, deceased, appears to have been substituted for the said John W. McDonald, whom he succeeded as sheriff. The defendants Leavitt and McDonald appeared and filed separate general demurrers to the petition. The savings bank was never served with summons; hence, neither it nor the second cause of action set out in the petition is now before us. In their brief plaintiffs say that the demurrers of defendants Leavitt and McDonald were sustained and plaintiffs’ suit as to them dismissed. The record is silent as to any ruling upon the two demurrers referred to, but does contain a journal entry dismissing the action as to the defendant savings bank “and all other defendants in said action.” As the parties have treated this order as having been made after a ruling upon the demurrers of defendants and an election by plaintiffs to stand upon their petition, we will treat it in like manner.

This is the fourth time that the controversy set out in the first cause of action has been before this court. Tiie opinion, upon its first appearance, is reported in Van Etten v. Medland, 53 Neb. 569; upon its second appearance, in Medland v. Van Etten, 75 Neb. 794; and, upon its third appearance, in Medland v. Van Etten, 79 Neb. 49. The plaintiffs in this suit were parties and appellants in all of these appeals. The petition filed in this case shows upon its face that everything contended for was adjudicated by those decisions, and that this suit was evidently instituted, not for the purpose of obtaining justice, but for the purpose of affording the pleader an opportunity to give vent to his animus toward the judges of the district court for Douglas county and the judges and commissioners of this conrt. The character of the petition is such that if the attorney who wrote it, and who was himself one of the plaintiffs, were now living, it would be stricken from the flies.. There is no merit in this appeal.

■ The judgment of the district court is clearly right, and it is

Affirmed.