107 Neb. 288 | Neb. | 1921
This is an action to foreclose a mortgage on a section of land in McPherson county. The controversy is over the question as to whether a decree for alimony is a lien, to what extent it is a lien, and its rank. Earl E. Jackson homesteaded the land, made final proof, received his receiver’s receipt August 14, 1913, recorded it January 3, 1914, received his patent March 4, 1914, and recorded it November 8, 1915. In Douglas county on April 23, 1913, Minerva A. Jackson was granted a decree of divorce from Earl E. Jackson, in which it ivas provided that he should pay $40 then due on a previous order, $25 counsel fees, and, as permanent support and maintenance, the sum of $15 a month, beginning May 1, 1913, during the minority of the children, Ellen O. Jackson, aged five, and Leslie E. Jackson, aged three. August 3, 1913, a transcript of the decree was’filed in McPherson county. Nothing has been paid or recovered on the decree. Minerva A. Jackson has become insane, but she and the two children are represented by guardians and are cross-appellants. January 3, 1914, Earl E. Jackson made a $500 mortgage on the land; it was recorded January 5, 1914; and came by assignment to plaintiff. On January 27, 1915, Jackson conveyed the land, subject to the mortgage, to William Madison, the appellant. May 24, 1920, the trial court entered a decree giving cross-appellants a first lien for the $65 and for $85 due and unpaid instalments of alimony of $15 each, with interest, and gave plaintiff a second lien for the amount due on his mortgage. Plain
• Counsel for appellant Madison, in their brief and oral argument, waived consideration of all minor errors claimed, and narrowed the case to these two points: First. Was the decree for alimony in the sum of $15 a month during the minority of the children such order as could be a lien upon the land? Second. Even if the amount already due may be a lien, can those instalments not yet due be a lien?
The chief points urged against the decree for alimony are that it was not a final judgment and was not for a definite amount. This is a matter requiring the application of our own statutes. We are not helped much by cases from other jurisdictions. To save space we abstract the pertinent statutes from our Revised Statutes of 1913 : Section 7994 defines a judgment to be the final determination of the rights of the parties in an action; section 8575 says decree means judgment; section 8176 defines a final order as an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment; section 1585 provides that judgments and orders for payment of alimony or maintenance shall be liens upon property and be enforced as in other actions; section 1589 specifically provides that all decrees for alimony or maintenance shall be liens upon the property of the husband; section 1590 provides that the court may, on the petition of either party, revise and alter the decree respecting the amount of alimony or allowance, or the payment thereof; and section 1606 provides that the decree shall at the expiration of six months become final without any further action of the court.
The divorce decree affected the substantial rights of
Also jurisdiction of the court in matters relating to divorce and alimony is given by statute, and every power exercised by the court in reference thereto must look to the statute or it does not exist. Cizek v. Cizek, 69 Neb. 800, 76 Neb. 797. We cannot change it; we must therefore take the decree as we find it, inasmuch as the interested parties have made no move to change it but have treated it as final.
Moreover, this is in effect a collateral attack upon the integrity of the finality of the decree of divorce. A judicial order or judgment cannot be attacked in a collateral proceeding, unless affected by some jurisdictional infirmity. It will be conclusive upon the litigants and those in privity with them, unless reversed, vacated, or modified in an appellate or other proceeding instituted for that purpose. Dryden v. Parrotte, 61 Neb. 339; Beard v. Beard, 57 Neb. 754.
We conclude that the judgment in the divorce action was a first lien on the land, not only for the amounts due Avith interest, but also for the security of future payments: and that the decree should be modified, on the evidence already taken as preserved in the bill of exceptions, so as to protect such lien. The divorced Avife and her children are asking for the present Avorth of future payments to be included in the decree of foreclosure. If plaintiff and appellant Madison are willing, we see no objection to such a course; but if they prefer to have the land sold to satisfy the liens now matured, leaving the
We affirm the decree of the trial court in so far as it allowed a first lien for the past-due alimony payments, reverse it wherein it failed to allow a lien for the present worth of future instalments, and remand it for the entry of a decree in accordance with this opinion.
Judgment accordingly.