Cizek v. Cizek

• Decision Date: 17 September 1904
• Docket Number: 12,968
• Citation: 96 N.W. 657,69 Neb. 797
• Parties: MICHAEL CIZEK v. ANNA CIZEK. [*]
• Court: Nebraska Supreme Court

96 N.W. 657

69 Neb. 797

MICHAEL CIZEK v. ANNA CIZEK. ^[*]

No. 12,968

Supreme Court of Nebraska

September 17, 1904

ERROR to the district court for Lancaster county: ALBERT J CORNISH, DISTRICT JUDGE. Affirmed.

AFFIRMED.

Adolphus R. Talbot and Thomas S. Allen, for plaintiff in error.

James E. Philpott, contra.

POUND C. DUFFIE, C., concurs.

OPINION

POUND, C.

Michael Cizek, hereinafter styled the defendant, brought suit for divorce against Anna Cizek, hereinafter referred to as the plaintiff. The latter filed a cross-petition, praying that she be granted a divorce; alleging certain facts evidently intended as a claim that the property in controversy in the present cause had been purchased with her money and was, in justice and equity, her separate property, held in trust for her by her husband; and seeking to have the title thereto quieted in her and an award of alimony. Defendant failed to comply with an order for temporary alimony, and upon hearing plaintiff was granted a divorce. The decree further provided that, "by consent of parties being made thereto in open court," the defendant should convey the property in controversy to plaintiff, subject to a lien of $ 250 awarded defendant, to be evidenced by a mortgage which plaintiff was directed to execute; the decree to stand in lieu of such conveyance and mortgage in default of compliance. No appeal was taken, and the decree remains in full force. The present proceeding was brought by the plaintiff to obtain possession of the property. A verdict in her favor was directed in the district court, and error is prosecuted in this court.

It is contended on behalf of the defendant that the consent of his counsel was wholly without his knowledge or authority and that the decree, so far as it relates to the property in controversy, is void and open to collateral attack. There can be no doubt that if the court attempted to award alimony out of particular property or to charge the award upon particular property, instead of leaving it to operate as a general lien its action was irregular and erroneous, and subject to correction upon review. Swansen v Swansen, 12 Neb. 210, 10 N.W. 713; Brotherton v. Brotherton, 14 Neb. 186, 15 N.W. 347; Nygren v. Nygren, 42 Neb. 408, 60 N.W. 885. But where the court had jurisdiction of the parties and of the subject matter, and such subject matter was brought before it by the pleadings, its decree is not open to collateral attack, although the jurisdiction may have been exercised and the subject matter dealt with erroneously or irregularly. Hilton v. Bachman, 24 Neb. 490, 39 N.W. 419; Hough v. Stover, 46 Neb. 588, 65 N.W. 189. All parties were before the court by their pleadings. The plaintiff alleged that the property in question was, in equity, her separate estate and was held in trust for her by her husband. If so, the court had power to enforce the trust. Bartlett v. Bartlett, 15 Neb. 593, 19 N.W. 691. Whether any such presumption as that which exists where a husband purchases property and places the title in his wife's name arises where the property is purchased with the wife's money and the conveyance runs to the husband, we need not consider. In any event the presumption may be overcome by clear and convincing evidence of a trust. Doane v. Dunham, 64 Neb. 135, 89 N.W. 640. And we must assume that such evidence was before the court. Hilton v. Bachman, supra. The mere fact that the decree contains no express finding upon the issue as to a trust, raised in the cross-petition, is not material. In case the pleadings are sufficient to bring the subject matter before the court, the decree may not be attacked collaterally merely for want of findings. Such defect goes no further than to ...