Baldwin v. Burt

• Decision Date: 17 March 1898
• Docket Number: 9646
• Citation: 74 N.W. 594,54 Neb. 287
• Parties: EUNICE BALDWIN, APPELLANT, v. WELLINGTON R. BURT ET AL., IMPLEADED WITH MARION G. ROHRBOUGH, APPELLEE
• Court: Nebraska Supreme Court

74 N.W. 594

54 Neb. 287

EUNICE BALDWIN, APPELLANT, v. WELLINGTON R. BURT ET AL., IMPLEADED WITH MARION G. ROHRBOUGH, APPELLEE

No. 9646

Supreme Court of Nebraska

March 17, 1898

APPEAL from the district court of Douglas county. Heard below before KEYSOR, J. Reversed in part.

Reversed.

Duffie & Van Dusen and E. G. Thomas, for appellant:

The district court has control of its own judgments during the term, but this control ends with the term. Thereafter the power to interfere in any manner with a judgment entered must be exercised within the limits prescribed by statute and governed by fixed principles of law. (Smith v Pinney, 2 Neb. 139; Nuckolls v. Irwin, 2 Neb. 60.)

An order of the district court quashing the service of a summons cannot be reviewed by the supreme court before final judgment is rendered in the action. (Standard Distilling Co. v Freyhan, 34 Neb. 434; Persinger v. Tinkle, 34 Neb. 5; Lewis v. Barker, 46 Neb. 662.)

The judgment is conclusive until set aside. (Kizer Lumber Co v. Mosely, 56 Ark. 544; Pettus v. McClannahan, 52 Ala. 55; Janes v. Howell, 37 Neb. 320; Osborn v. Gehr, 29 Neb. 661; Pilger v. Torrence, 42 Neb. 903; Hall v. Hooper, 47 Neb. 111.)

The court had no jurisdiction to entertain the motion to quash the return of service. (Kohn v. Haas, 12 So. Rep. [Ala.] 577; Brewster v. Norfleet, 22 S.W. 226 [Tex.]; Gillilan v. Murphy, 49 Neb. 779; Smith v. Pinney, 2 Neb. 139; Ganzer v. Schifflauer, 40 Neb. 633; McBrien v. Riley, 38 Neb. 561; McCann v. McLennan, 3 Neb. 25; Kemp v. Cook, 18 Md. 130; Bronson v. Schulten, 104 U.S. 425; Culter v. Button, 53 N.W. 872 [Minn.]; Brown v. County of Buena Vista, 95 U.S. 157; Bissell v. New York C. & H. R. R. Co., 67 Barb. [N. Y.] 385.)

Byron G. Burbank, contra:

Marion G. Rohrbough was not in fact served with summons in this case and the court acquired no jurisdiction over him to enter a decree of foreclosure against him herein. The sheriff has no authority to sell his lot and the court has no authority to confirm the title thereto in the appellant.

The return of an officer of service of summons is not conclusive and may be shown by clear and satisfactory evidence to be untrue. (Holliday v. Brown, 33 Neb. 657, 34 Neb. 232; Connell v. Gallagher, 36 Neb. 749; Wyland v. Frost, 75 Ia. 210; Randall v. Collins, 58 Tex. 232; Walker v. Lutz, 14 Neb. 276; Newlove v. Woodward, 9 Neb. 502; Meyers v. Le Poidevin, 9 Neb. 535; Frazier v. Miles, 10 Neb. 109; Prugh v. Portsmouth Savings Bank, 48 Neb. 414; Campbell Printing Press & Mfg. Co. v. Marder, 50 Neb. 283.)

Rohrbough had the right to specially appear and object to the jurisdiction of this court over him. (Cobbey v. Wright, 23 Neb. 250; Brown v. Rice, 30 Neb. 236; Enewold v. Olsen, 39 Neb. 64.)

RYAN, C. IRVINE, C., not sitting. HARRISON, C. J., concurring in the conclusions, RAGAN, C., concurring, SULLIVAN, J., concurring in part. NORVAL, J., express no opinion.

OPINION

The opinion contains a statement of the case.

RYAN, C.

In this case the district court of Douglas county entered a decree of foreclosure against numerous defendants February 10, 1897. Among these defendants was the appellee, Marion G. Rohrbough the owner of the north half of lot 28, in Griffin & Isaac's Addition, Omaha. Of this particular half lot it was provided in said decree that an independent sale should be made, and accordingly a sale of the same was advertised by the sheriff of Douglas county to take place June 1, 1897. After the adjournment of the February term of said district court Marion G. Rohrbough gave notice to the plaintiff that on May 8, 1897, he would call up for hearing his objection to the jurisdiction of the aforesaid court. The grounds of this objection were that said Rohrbough had never been served with summons and had never appeared in this case. There was a motion to strike this objection from the files, which motion was considered in connection with the objection against which it was directed.

To an understanding of the questions involved in this inquiry it is proper to state that the service of the summons challenged was returned as having been made on Marion G. Rohrbough, August 14, 1891. There was a decree previous to that above noted, which original decree was reversed by this court. (Baldwin v. Burt, 43 Neb. 245, 61 N.W. 601.) On the hearing of the objection to the jurisdiction there was submitted evidence which satisfied the district court that no service of summons had ever been made on Rohrbough, and accordingly there was a finding supplemented by this language: "It is therefore ordered, adjudged, and decreed by this court that the said special appearance of the said Marion G. Rohrbough made herein be, and hereby is, sustained; that the objection to the jurisdiction of this court over the said Rohrbough be, and the same is hereby, sustained, and that the pretended service of summons herein upon the said Marion G. Rohrbough be, and the same is hereby, wholly quashed, set aside, and held for naught, and of no force and effect." The above recited proceedings were had May 28, 1897. The half lot of Mr. Rohrbough, nevertheless, was, on June 1, immediately thereafter bidden in by the plaintiff, Eunice Baldwin, at the sheriff's sale, for $ 6,500. June 25, 1897, there was served on the attorney of Rohrbough a notice that on the day following there would be asked a confirmation of the aforesaid sheriff's sale. To this confirmation Rohrbough interposed the following objections:

"1. That it was on the 28th day of May, 1897, finally adjudged and determined by said court that no service of summons was ever made upon him in this case in any manner whatsoever or at any time or place and that he has never appeared in this court in this case, and that this court has finally determined that this court has no jurisdiction whatsoever over him or his rights or property in this case.

"2. That this court is without jurisdiction of any kind or nature whatsoever over the said Marion G. Rohrbough or his rights or property, as shown by the decree quashing the service of summons against the said Marion G. Rohrbough now on file in this court in this case, and that this court is without jurisdiction to enter any final order or decree confirming the pretended sale of the real estate of the said Marion G. Rohrbough claimed to have been made by the said sheriff to the plaintiff herein, Eunice Baldwin, on the 1st day of June, 1897."

Upon the showing by sufficient evidence of want of jurisdiction as above alleged the motion for confirmation of the sale was overruled, and to this ruling we shall first direct our attention.

In Parrat v. Neligh, 7 Neb. 456, it was held by this court: "In a sale made under the authority of a decree in equity, the court is the vendor, and the commissioner making the sale is the mere agent of the court. The decree directs the sale of the property and the application of the proceeds to the payment of the debt, and is a sufficient warrant of authority to the officer to sell as directed in the decree." The views thus expressed find sanction in Rector v. Rotton, 3 Neb. 171; Bachle v. Webb, 11 Neb. 423, 9 N.W. 473; Gregory v. Tingley, 18 Neb. 318, 25 N.W. 88; Burkett v. Clark, 46 Neb. 466, 64 N.W. 1113; Johnston v. Colby, 52 Neb. 327, 72 N.W. 313; Amoskeag Savings Bank v. Robbins, 53 Neb. 776, 74 N.W. 261. In the case at bar, when the court was called upon to confirm the sale conducted under its supervision, it was disclosed by a defendant, expressly notified of the pending confirmation proceedings by the purchaser, that, as against the rights of such defendant, the court had never had any jurisdiction whatever. It is now insisted that the court, notwithstanding this condition of affairs, should have assumed that it possessed jurisdiction and, on that unwarranted assumption, should have confirmed the sale. If a confirmation had been ordered, a deed would have been issued to the purchaser, by virtue of which he might have executed a conveyance which would have clouded the title of the defendant not served with summons. Courts are not required to do vain things; neither are they required to assume to exercise a jurisdiction which they do not possess. It was held by this court in Moore v. Boyer, 52 Neb. 446, 72 N.W. 586, where the judgment defendant had paid to the clerk of the district court a sufficient sum to satisfy a decree before a sale thereunder, that because of such payment and satisfaction a confirmation of such sale, when made, had been properly denied. In Weber v. Kirkendall, 44 Neb. 766, 63 N.W. 35, the third paragraph of the syllabus is in this language: "The power to correct errors in their own proceedings is inherent in all courts of general jurisdiction, and in the exercise of that discretion they are governed not alone by this solicitude for the rights of litigants, but also by considerations of justice to themselves as instruments provided for the impartial administration of the law." We cannot say that the district court in refusing to confirm the sale committed error, and therefore its order in this regard is affirmed.9

It does not result from this, however, that we must sanction the order quashing the summons of which service had been made and returned more than six years before. Of his own volition the defendant interposed objection to the jurisdiction of the court to render the judgment complained of, and moved that the court quash the summons upon which it had acted in rendering such judgment. At this time the summons was functus officio. It is possible that the court may have been misled by this summons with the indorsed return of service thereon when it entered its decree, but this isolated fact, if such it was, was immaterial on the objection to jurisdiction, for the court had passed...