Fisk v. Thorp
| Decision Date | 17 March 1897 |
| Docket Number | 7171 |
| Citation | 70 N.W. 498,51 Neb. 1 |
| Parties | ANNA L. FISK v. RUSSELL THORP ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Dawes county. Tried below before BARTOW, J. Reversed.
REVERSED AND REMANDED.
Allen G. Fisher, for plaintiff in error.
E. W Dailey, contra.
On the 10th day of February, 1892, the plaintiff in error herein commenced two actions in the district court of Sioux county each for the foreclosure of a real estate mortgage and judgment against certain of the parties for any of the amount of debt unsatisfied by the application of the proceeds of the sale of the lands under the mortgage. The actions proceeded to decrees of sale of the mortgaged premises, confirmations of the sales, and deficiency judgments were rendered against certain of the defendants therein, including Russell Thorp and Josephine C. Thorp, defendants in error herein. During a term of court subsequent to the entry of the deficiency judgments there was presented for the Thorps a motion, the object of which was the vacation of the judgments as to the moving parties. This motion was made under the portion of section 602 of the Code of Civil Procedure designated "Third," wherein, as a ground for a district court to vacate or modify its judgment after the term at which it was rendered, it is stated that it may be for "irregularity in obtaining a judgment." This motion was called for hearing May 1, 1894, during a session of a term of court in Sioux county, and after overruling a challenge to the jurisdiction of the court it was ordered that it be heard at district court in Chadron, Dawes county, on May 28, 1894, to which place and time the hearing was adjourned. The motion and accompanying transcript were transferred to Dawes county, and when the matter came up in court, or before the judge, in accordance with the prior order, the counsel for plaintiff in error challenged the jurisdiction of the court to hear the matter at such place. This objection was overruled and subsequently both parties participated in a hearing on the motion at Chadron, as a result of which the deficiency judgments against the Thorps were vacated.
It is claimed that there was no sufficient notice of the motion. In section 604 of the Code of Civil Procedure it is prescribed that a motion of the character of the one in this case shall be "upon reasonable notice to the adverse party or his attorney in the action. " A reasonable notice of the hearing of a motion is such notice as is meet and fair, in view of the circumstances and conditions existent at the time in the matter to be presented. (Sterling Mfg. Co. v Hough, 49 Neb. 618, 68 N.W. 1019; 2 Nash, Pleading & Practice [4th ed.], p. 1228.) That service of the notice of the hearing of the motion was made upon the attorney who represented the plaintiff in error in this case is not controverted. On the subject of the time of its service it is asserted in the brief of counsel that he was served with the notice five minutes before the matter was called for hearing. The record, by which we should be governed, is not clear in regard to the time of notice, except that it was of the date May 1, 1894. The notice was dated May 1, 1894, and the hearing was set for the same day. This would seem to have probably been rather rapid advancement in the proceedings, but...
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