*1 Lyle Floy Dorland, al., appellees, Wittwer et v. Cetha Company, deceased,by HomeState and Trust executor FloyDorland, deceased,appellant, Estateof Impleaded B ru ce with with Leona M. Impleaded Dorland, as Leona M. Murphy, also al., known et Impleaded
appellants, Phoenix Mutual Life Company, corporation, Insurance a Connecticut appellees. al.,
et April Filed 1977. No. 40952. O’Malley, Dwyer, O’Leary
McGrath, North, Kratz, Koutouc, Martin, Fankhauser, Koutouc & appellant. Stehlik, Joe for Loren Mitchell, Thomas Demerath, Virgil C. John appellee Dorland. Gist, J. Boslaugh, J., Spencer, White, C. before
Heard White, JJ. Brodkey, McCown, Clinton, White, C. J. filed a Wittwer and Mae Lyle October *2 County, Richardson in the District Court
petition Nebraska, approximately on a to foreclose County. in Richardson located of land acres Dor- Floy Cetha were the defendants among Named in son, appellee Bruce her and land reference made petition The Wittwers’ case. this Farmers State at the held escrow being a deed Sabetha, Kansas, to trans- purported which estate, of the fore- subject was the real which fer the Ce- action, the death of upon the appellee closure Dorland. Floy tha Floy Cetha petition,
In her answer to Wittwers’ held being the deed validity disputed Dorland escrow, no consideration that there was alleging pres- a pass she never intended delivery; that interest; to have the deed was intended ent death; was there- and that the deed until her effect void, invalid, of no effect. and fore the where- this foreclosure At the time of Service were unknown. abouts granted. requested him was as to publication motion, 1974, 2, the District its own on July On interests protect ad litem guardian a appointed action. in the foreclosure of appellee killed was Floy On August suit Subsequently accident. in an automobile her es- executor in the name of the was revived ad January On tate. on petition, the Wittwers’ filed an answer litem re- the deed alleging behalf of the and that was valid petition to in the Wittwers’ ferred appellee; was in the real estate subject remaining vest title to all for the court asking Dorland. land Warren Bruce January January Trial was held on fore- District decree Court entered a granting requested by closure, Additionally, decree, Wittwers. in its delivery Court found that there was no of the 1960 warranty being deed held in escrow in the Farmers Sabetha, Kansas; State Bank in that Cetha Dor- operate did land not intend the deed to as a muni- relinquish title, ment or or that she intended to all authority dominion, control, and over the real estate warranty deed; described in the and that the deed was therefore purported conveyance void. court further found that the testamentary
was in charac- ter, consideration, without not executed in ac- Nebraska, cordance with the laws of the State of appellee acquired that the no interest in the real es- purported conveyance. tate reason of this Thereafter, the executor of the estate of Cetha Floy Dorland entered into contract for the sale of subject party. real estate to a third
At the time the foreclosure action was filed and *3 during pendency thereof, the no one had seen or appel- from, of, heard or knew the the whereabouts appellee reappeared sought lee. Thereafter the opened up. have the to foreclosure decree year 11, 1976, March more than a after the foreclo- petition decree, sure he filed a in the District Court for a new trial. appellee’s right
The matter of the to a new trial Following tried on for a was June 1976. a motion appel- verdict, directed the denied the District Court petition modify, prior vacate, lee’s or set aside the judgment. 23, 1976, foreclosure On June the District journal entry, Court filed its in accord which was with the entered June that on denied, contained motion was but which following language appeal: the which has led to this “The court further finds that matters raised the other by Warren Bruce Dorland for a new in his motion applicable trial are not do not come this case and 364 25-2001 because Statute the terms of Nebraska
within the land at ownership of the title or of the the de- as between action of the foreclosure the time Plain- fendants, or presented in issue put was not had and the Court pleadings, Petition or other tiff’s in this that issue find or determine case.” foreclosure mortgage remand the cause reverse the We in accor- further District Court for this opinion. dance District Court that contends by holding foreclosure decree modifying
erred
action to
in the foreclosure
it had no jurisdiction
Floy
of title as between
the issue
determine
Dorland at
the time
and Warren Bruce
Dorland
foreclosure.
mortgage
‘ n Aforeclosure
title but
quiet
action is not a suit
of a
the existence
purpose
determining
lien,
thereof
to ascertain
the amount
directing
a decree
the sale
and to obtain
priority,
no re
thereof
case
satisfaction
premises
* *
Stock Land
is made
Lincoln Joint
demption
(1943),
Barnes,
8 N. W.
Bank v.
L.
S. Ct.
Ed.
den. 320 U. S.
cert.
However,
issue
where title has been made an
the court
to the foreclosure
parties
Shellenbar
and decide that
issue.
consider
properly
Catron,
Biser,
Lounsbury
this issue. Once a court of
has ac-
quired jurisdiction
any purpose,
of a cause for
purposes
it
proceed
retain it for all
to a deter-
put
plead-
mination of all the matters
in issue
ings,
unnecessary litigation.
and thus avoid
Dixon
O’Connor,
judgment pursuant provisions to the 25- section 25-525, R. R. S. and section R. S. 1943. Court denied motion for a District argument, ap- trial. In new his brief and on oral pellee contends that this was error. 25-2001, here,
Section R. R. S. as is relevent provides: “A district court shall have to va- modify judgments cate or its own or orders after the judgments term at which such or orders were made. * * * (2) granted a new trial against constructively pro- defendants summoned as vided section 25-517.” provides party 25-525,
Section R. R. S. that a against judgment whom a or order has been ren- by publication, dered without other services may, than years within 5 after the date of up opened order, have or order and be *5 366 up open seeking person The to defend.
in let judgment party, file give the adverse notice must requires, pay so answer, if the court all costs a full appear the court satisfaction to the it and make that tual pendency no ac- during he had the action appear in court and in time to notice thereof his defense. make judgment seeking sec- party under a
A
preponder-
1943,
25-525,
a
must show
R. S.
R.
tion
notice of
actual
he had no
of the evidence
ance
appear and
pendency
in time
of the action
McNally,
McNally
152 Neb.
v.
his defense.
make
845,
(1950).
up
seeking
open
a
One
2d 170
43 N. W.
meritorious
file a
section must
under this
Ziemer,
603,
367 Gordman, Inc., Schmidt v. Richman (1974), recently we held that this may, plain option, error not court at its consider specified appellant’s See, also, 25-1919, § brief. 1943; Smallcomb, R. S. Smallcomb v. (1957); Savings
84 N. W. Adams v. Nebraska Exchange Bank, & Neb. 76 N. W. Appeal pp. S., Error, §
4A C. J. 1240to 1244. appellee clearly statutory require- met all the open up, right, ments to entitle him to as a matter of *6 judgment. Conger, foreclosure v. the The Brown supra. appellee brought years his action within 5 judgment. date of the foreclosure Service on him in by publication. appel- that action was obtained lee knowledge testified, contradiction, without that he had no any concerning kind the foreclosure May action until 1975. His tendered defense was plain deny meritorious on its face. It was error to judgment. his motion to of the District Court is reversed and the cause remanded for further in ac- opinion. cordance with this
All costs are taxed to the Home State Company and Trust because the relief ordered judgment against is a this court reversal of a Bruce Dorland on a motion for a new trial in the trial court. Reversed and remanded. concurring J., in result.
Clinton, I in the result. The trial court should concur have judgment determining set aside its status of the only to Warren Bruce Dorland. The service on deed was constructive notice of a fore- try no The court had issues closure. had no constructive notice. The of which Dorland authority to ex- ad litem had by joining pand issue with Cetha the issues expand sought in her the issues Dorland when she Rep. Sanchez, 505; 13 La. An. Walker v. answer. 212. Lawrence, Am. Dec. 19 Cal. Waterman joins concurrence. J., in this Spencer, Edgar Runner, Nebraska, Bear State appellant.
252 N. W. April 1977. No. Filed