78 Neb. 531 | Neb. | 1907
Fannie A. Turner, assignee of a mortgage on real estate in Custer county, instituted an action for the purpose of foreclosing the mortgage. Personal service was had on the defendants and decree entered by default on the 30th day of November, 1897. The defendants filed a request for, and procured a stay of, order of sale. On January 18, 1904, an assignment of the decree to James Leonard was filed in the office of the clerk of the court. It was executed by the executor of the estate of Fannie A. Turner, deceased. Thereafter Leonard, without revivor proceedings, procured an order of sale to issue on the decree, pursuant to which the land was sold and bid in by him, the sale was confirmed and sheriff’s deed issued. The order of confirmation was entered on the 18th day of November, 1904. The amount of Leonard’s bid was $60.30 in excess of the decree and costs. That sum he paid into the hands of the sheriff, who, after confirmation, paid the same to the mortgagor as owner of the title. On March 13, 1905, this action was instituted by the mortgagor to be permitted to redeem the property from the decree of foreclosure, on the ground that the procedure after the death of Fannie A. Turner, which it is charged in the petition occurred prior to the decree, was void. The defendant tenders the issue that the plaintiff is estopped from questioning the regularity and validity of the proceedings by reason of his request for a stay of execution and the acceptance of the surplus after the sale and confirmation, and that the proceedings, at- most, were voidable only, and not open to collateral attack. The decree was for the defendant, from which the plaintiff appeals.
It is unnecessary, however, to rest our conclusion upon that ground alone. It is provided by our code that the district court shall have power to vacate or modify its own judgments or orders after the term at which such judgments or orders were made for the death of one of the parties before the judgment in the action. The procedure to vacate a judgment for that reason is by petition, duly verified, setting forth the judgment or order, the grounds to yacate or modify it, and the defense to the action, if the party applying was defendant, and on such petition a summons shall issue and be served as in the commencement of an action. Such proceedings, however, must be instituted within three years after the defendant has notice of the judgment. The remedy having been provided it must be exercised within the time limited by statute, otherwise the judgment becomes as valid and binding as any other judgment. Gilman v. Donovan, 53 Ia. 362. Furthermore, the stay of execution which the mortgagor obtained after decree was a waiver of all errors
It remains, then, to be determined whether the sale on an order issued after assignment of the decree to Leonard, and without revivor, is so far void as to be open to the character of attack here made. In' Vogt v. Daily, 70 Neb. 812, it was held that, if the plaintiff in an action died after judgment but before satisfaction thereof, no valid execution can be had upon the property of the judgment defendant until the judgment has been revived in the manner provided for in the code. The ruling was put upon the ground that actions should be prosecuted in the name of the real party in interest, and that this party should be a living, breathing entity, a person of legal responsibility. The case of Seeley v. Johnson, 61 Kan. 337, is cited in support of that conclusion. In the opinion in the Kansas case it is said: “A defendant who.se property is levied upon under an order of sale or general execution ought to be able to ascertain from an inspection of the record in the case to whom payment of the debt may be made, and Avhen the death of the oAvner of the judgment occcurs, all proceedings for its enforcement ought to be held in abeyance until some person in being is substituted with Avhom the debtor may treat regarding the satisfaction of the judgment.” In an earlier case, Harris v. Frank, 29 Kan. 200, where the reason for the rule did not obtain because of an assignment of record on the margin of the journal of the court where the judgment was recorded, it was held that no revivor was necessary, and that notwithstanding the death of the plaintiff in the proceedings where the judgment was obtained his assignee might proceed by execution as though the plaintiff Avere still living. In Vogt v. Daily, supra, it appears that one Fritz claimed to be the assignee of the judgments upon which execution had issued, but from the language employed in the opinion it is evident that the assignments were not of record, otherivise the reasoning would have failed. In Street v. Smith, 75 Neb. 434, Ave held that,
What we do hold is that the sale was not void, and we recommend that the decree of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is
Affirmed.