Beatrice Paper Co. v. Works

• Citation: 65 N.W. 1059,46 Neb. 900
• Parties: BEATRICE PAPER CO. v. BELOIT IRON WORKS.
• Decision Date: 22 January 1896
• Court: Supreme Court of Nebraska

46 Neb. 900

65 N.W. 1059

BEATRICE PAPER CO.

v.BELOIT IRON WORKS.

Supreme Court of Nebraska.

Jan. 22, 1896.

Syllabus by the Court.

1. If the judgment which the litigant seeks to have reviewed is appealable, he may have it reviewed on appeal or error, at his election, and he may make such election at any time before the final submission of the case in this court. He may dismiss his appeal, and stand on his petition in error, or vice versa. But, if he makes no such election, this court will review the judgment of the district court on error, when there is filed with the transcript a petition in error. Woodward v. Baird, 61 N. W. 612, 43 Neb. 310;Monroe v. Reid (Neb.) 64 N. W. 983,--followed and reaffirmed.

2. In a proceeding in error from a decree of the district court confirming a judicial sale, this court will not review a question involving the merits of the original decree. Bank v. Scofield, 4 N. W. 71, 9 Neb. 499;Stratton v. Reisdorph, 53 N. W. 136, 35 Neb. 314;Trust Co. v. Hamer, 58 N. W. 695, 40 Neb. 281,--followed and reaffirmed.

3. The district courts of this state have authority to control their process, and, for sufficient reason, may recall an execution or order of sale, and set aside an appraisement of property made thereunder.

4. The fact that all the property made liable by a decree is not described in the execution or order of sale issued, is sufficient reason to authorize the district court to recall the order of sale, and set aside the appraisement made thereunder.

5. In a suit in equity, where the decree has been entered, and the case is still on the docket, pending proceedings to sell the property, all of the parties to the case, in the absence of a rule on the subject, are bound to take notice of all the orders entered and steps taken by the court in the case, in term time, which do not affect the original decree.

6. The constitutionality of the act passed and approved February 25, 1875 (Sess. Laws 1875, p. 38), by which section 498 of the Code of Civil Procedure was so amended as to confer authority upon the district judges sitting in chambers to confirm judicial sales, is no longer an open question in this court. McMurtry v. Tuttle, 13 N. W. 213, 13 Neb. 232, reaffirmed.

7. The act passed and approved March 2, 1881 (Sess. Laws 1881, c. 46), does not repeal any part of section 498 of the Code of Civil Procedure, nor repeal section 39 of the act passed and approved February 27, 1879 (Sess. Laws 1879, p. 82), but said laws should all be construed together.

8. A statute will not be construed as repealing by implication another statute, unless the repugnancy between the two is plain and unavoidable. Lawson v. Gibson, 24 N. W. 447, 18 Neb. 137.

Error to district court, Gage county; Babcock, Judge.

Action by the Beloit Iron Works against the Beatrice Paper Company and others to enforce a mechanic's lien. There was a decree for plaintiff, and the company brings error. Affirmed.

J. E. Cobbey and G. M. Johnston, for plaintiff in error.

S. L. Geisthardt, for defendant in error.

RAGAN, C.

This is a suit in equity in the district court of Gage county brought by the Beloit Iron Works against the Beatrice Paper Company and others. In its petition the iron works claimed that the paper company was indebted to it in a large sum of money for labor and material furnished by it to the paper company towards the erection of a paper mill on its property, and claimed a lien upon the property of the paper company, under the mechanics' lien law of the state, to secure the payment of the paper company's indebtedness to it. The iron works had a decree as prayed in its petition, under which the property of the paper company was sold to the iron works, the sale confirmed, and the paper company prosecutes to this court proceedings in error.

The paper company has filed in this court what it denominates a “petition in error and on appeal,” and thus seeks to have this court review the judgment of the district court both on appeal and error. In Woodward v. Baird, 43 Neb. 310, 61 N. W. 612, it was held that “when a case is, in its nature, appealable, and the party seeking a review files, in connection with the transcript, a petition in error, he will be deemed to have elected to proceed in error, and not by appeal.” And in Monroe v. Reid (Neb.) 64 N. W. 983, it was held that “a case will not be considered in this court as both an appeal and a proceeding in error. A party must elect which remedy he will pursue, and, having filed a petition in error, must be presumed to have selected that remedy.” It must therefore be considered as settled that a litigant cannot have reviewed in this court a judgment of a district court both on appeal and in error. If the judgment which the litigant seeks to have reviewed is appealable, he may have it reviewed on appeal or error, at his election, and he may make such election at any time before the final submission of the case in this court. He may dismiss his appeal, and stand on his petition in error, or he may dismiss his petition in error, and stand on his appeal. But, if he makes no such election, this court will review the judgment of the district court on error, when there is filed with the transcript a petition in error.

2. The first assignment of error argued here by counsel for the paper company is that the main decree rendered by the district court in the action is erroneous in that it makes the debt found due to the iron works from the paper company a lien, under the statute, upon certain property owned by the paper company, and on which property the material and labor furnished by the iron works were not used in constructing the improvements for the paper company, and that, therefore, the court erred in issuing an order for the sale of the property of the paper company made liable by the decree for the debt. But the petition in error filed here by the paper company does not assail in any respect the correctness of the decree of the district court. The petition in error challenges only the correctness of the proceedings of the district court subsequent to the rendition of such decree, and prays that the order confirming the sale made under the decree may be reversed. In Bank v. Scofield, 9 Neb. 499, 4 N. W. 71, on an appeal from an order of the district court confirming a sale of mortgaged premises, it was held that “this court would not consider a question involving the merits of the original case.” In Stratton v. Reisdorph, 35 Neb. 314, 53 N. W. 136, it was held that “where parties have been personally served with summons and make an appearance in a suit to foreclose a mortgage, they cannot afterwards, to defeat confirmation, assail the decree for mere irregularity.” See, also, Trust Co. v. Hamer, 40 Neb. 281, 58 N. W. 695. The court had jurisdiction of the subject-matter of the action, and of the parties thereto; the petition stated a cause of action; the decree rendered is supported by the pleadings; and no appeal has ever been taken from this decree, nor has any proceeding in error been had or commenced which challenges its correctness. We cannot, therefore, look into the record for the purpose of ascertaining whether the decree is erroneous. It is not void, it is not directly attacked in this proceeding, and it must therefore be conclusively presumed to be valid.

3. An order for the sale of a part of the property described in the main decree was issued; such property appraised, advertised, and offered for sale, and not sold, for want of bidders. The sheriff returned such order...