1. When the jurisdiction of the district court is invoked, either by an action at law or a suit in equity, its judgment or decree cannot be successfully assailed for want of jurisdiction, on the ground that an issue triable to a jury was tried to the court.
2. An order vacating a decree rendered at a former term on the ground that the court had no jurisdiction of the subject-matter is a final order, within the meaning of section 581 of the Code of Civil Procedure.
3. In equitable actions the remedy by appeal is not exclusive, but the final orders or decree rendered therein may be reviewed on error.
4. Where the correction of the errors complained of involves the re-examination of no issue of fact, a motion for a new trial is not a prerequisite to a review of a final order or judgment on error in this court.
Commissioners' opinion. Department No. 3. Error to district court, Dakota county; Graves, Judge.
Action by Otto T. Bannard against Mary E. Duncan and others. Judgment for defendants, and plaintiff brings error. Reversed.Wm. Milchrist and Wm. P. Warner, for plaintiff in error.
W. E. Gantt, for defendants in error.
ALBERT, C.
The plaintiff filed a petition in the district court, which, omitting the formal parts, is as follows: “Comes now the plaintiff, and, for cause of action against the defendants, states: (1) That he is the legal owner, in fee, of the following described real estate, situated in Dakota county, Nebraska, to wit: The northwest quarter of section twenty-seven, township twenty-eight, range six east. (2) That on or about January 10, 1899, the defendants wrongfully and unlawfully went into possession of said premises, and still retain the possession thereof, and claim to own said property. (3) More particularly setting forth his cause of action against the defendants, the plaintiff states that he holds title and ownership of said property through a perfect chain of conveyances from the issuance of patent from the United States government to the present time, the last conveyance being by sheriff's deed based upon a certain mortgage made by the defendants Stephen Cain and Anna Cain to the Fidelity Loan & Trust Company on the 2d day of December, 1891, and taxes paid under said mortgage, and the foreclosure of said mortgage and taxes so paid, in this court. (4) That the defendants Mary E. Duncan, Sarah M. Duncan, Anna B. Duncan, and William B. Davis as guardian of the said Anna B. Duncan, claim to own said premises under and by virtue of a certain deed thereto made by one David Brendlinger in the year 1870 to one William Duncan, and under the terms and provisions of certain last will and testament of the said William Duncan bequeathing said property to one William W. Duncan, now deceased, who was the father of the said Duncans, defendants herein. (5) That neither the said deed nor last will and testament under which the said defendants claim title was ever recorded or probated or filed for probate and record in Dakota county, Nebraska, until long after plaintiff's grantors and the parties who executed the mortgage above mentioned had acquired title to said premises, and the mortgagee named in said mortgage had acquired its lien thereon, and neither said mortgagee, nor its grantors, nor his grantors, had any notice or knowledge, either actual or constructive, of the said defendants' claim of title, or the said deed or will and testament; that they purchased said premises in good faith, for a valuable consideration, with no notice or knowledge of the said defendants' claim of title, or deed or will under which they claimed. (6) That the said defendants Mary E. Duncan, Sarah M. Duncan, Anna B. Duncan, and William B. Davis, guardian of the said Anna B. Duncan, nor any or either of them, ever paid the taxes upon said premises, but the same have been paid by plaintiff's immediate grantors for more than twenty years last past. (7) That plaintiffs' immediate grantors have been in the actual possession of said premises for more than ten years last past, and paid the taxes thereon without notice or protest from the said defendants. (8) That the defendants Stephen Cain and Anna Cain are the same parties who made the mortgage upon said premises herein mentioned to the said Fidelity Loan & Trust Company, and were at the time of the making thereof the owners of said premises; that they lived upon said premises for more than ten years last past; that about the 10th day of January, 1899, above mentioned, confirmation of sale under said mortgage foreclosure was secured, and a deed to said premises was ordered issued to this plaintiff, and the said Stephen and Anna Cain, then realizing that the plaintiff was about to secure possession of said premises by virtue of his sheriff's deed, pretended to surrender possession of said premises to the other defendants herein under their claim of title above mentioned, and took from them a lease for said premises, and now hold or pretend to hold the same by virtue of said lease, and occupy the same as the tenants or pretended tenants of said other named defendants. (9) That each and all of said defendants, except the said Stephen and Anna Cain, are nonresidents of the state of Nebraska, and hold the possession of said premises through the said Stephen and Anna Cain, as above mentioned; that actions at law to try the title to said premises and the right to the possession thereof must necessarily be protracted, and will result in a multiplicity of suits. Wherefore the plaintiff prays that his title in and right to the possession of said premises be forever quieted and confirmed against said defendants, and each of them, and their grantees, and that the said defendants, and each of them, be forever enjoined from claiming title in and to said premises adverse to that of this plaintiff, and from withholding possession of said premises from the plaintiff, and from occupying the same, and from interfering in any manner with the plaintiff in the free use, occupation, and enjoyment of said premises, and from such other and further orders in said premises and action as may be necessary, and that justice and equity may require. Plaintiff further prays that he may recover his costs of said defendants.”
Personal service was had on the defendants Stephen Cain and Anna Cain. Service was had on the defendants by publication. A guardian ad litem was appointed for the infant defendants, who filed a general denial. The other defendants made default. At the October term, 1899, the cause was submitted to the court on the petition of the plaintiff, the answer of the guardian ad litem, and the evidence, on consideration whereof the court found and decreed as follows: “That the deed mentioned by the...
