Brandeen v. Lau
| Decision Date | 31 December 1924 |
| Docket Number | No. 24134.,24134. |
| Citation | 113 Neb. 34,201 N.W. 665 |
| Parties | BRANDEEN v. LAU ET AL. |
| Court | Nebraska Supreme Court |
“The sufficiency of the petition,” in a court of record, “is not a test of jurisdiction, as the court may commit an error in holding it sufficient; but this, if the court had jurisdiction, will not render the judgment subject to collateral attack.” Taylor v. Coots, 32 Neb. 30, 48 N. W. 964, 29 Am. St. Rep. 426.
The omission of an allegation of a jurisdictional fact, in a judgment of a court of record, is cured by proof of the existence of such fact, and where, in such court, a judgment is rendered, and is silent with respect to a jurisdictional fact, it will be presumed that the court acted within its jurisdiction. 1 Woerner's American Law of Administration (3d Ed.) §§ 143-145.
Jurisdiction of the subject-matter, in a court of record, is to be tested by the authorized extent of the powers of the court in respect of the cause of action before it. 1 Woerner's American Law of Administration (3d Ed.) § 144.
In a court of record, it is not essential that every jurisdictional fact appear upon the face of the record, and if a petition sets out facts sufficient to show a cause of action within the general jurisdiction of the court, and no facts appear upon the face of the record establishing that no jurisdiction exists, all presumptions are resolved in favor of the power of the court to act.
The county court, as a court of record, “may enter a judgment nunc pro tunc on motion and notice, and the fact that the application therefor is not made for a considerable time after the judgment was rendered does not deprive the court of jurisdiction.” Phelps v. Wolff, 74 Neb. 44, 103 N. W. 1062.
Appeal from District Court, Lancaster County; Shepherd, Judge.
Action by August Brandeen against John D. Lau and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.
John S. Bishop and C. C. Flansburg, both of Lincoln, for appellee.
This is the second appearance of this case in this court. The former opinion, under Brandeen v. Beale, is reported in 110 Neb. 686, 194 N. W. 787, to which reference is had for a statement of the material facts, which do not need to be repeated here.
When the mandate was issued from this court, after argument on the first submission, defendants Beale and Lau filed a motion in the county court, January 7, 1924, wherein they jointly moved “for an order nunc pro tunc” that a substituted decree be filed for the decree appointing the guardian, which was “filed June 22, 1921, to conform to the actual findings of said court and judgment rendered at said time, for the reason that said original decree appointing the guardian was not complete and did not conform to the actual findings of fact and judgment rendered by the court at said time.” Incorporated in and as a part of the same motion was an application to the county court
January 14, 1924, the county court sustained the motion, and, pursuant thereto, the petition was amended and a substituted decree was filed to conform to the actual findings of the court which were made and pronouncedat the time the case was heard and the decree of court was rendered. The substituted decree bore the date of June 22, 1921, that being the date when it was rendered. In this substituted decree it is shown that at the second hearing August Brandeen was “represented in county court by his attorneys.”
April 28, 1924, August Brandeen, by the same counsel which formerly appeared for him in the county court, and also appear for him now in this court, filed a petition in error in the district court in and for Lancaster county.
Upon submission the district court found:
From the judgment so rendered in the district court defendants Beale and Lau have brought the record here to have it reviewed.
The former opinion of this court in this suit, which is above cited, would be ordinarily the law of the case. Donnelly v. Sovereign Camp, W. O. W., 111 Neb. 499, 197 N. W. 125. But the former opinion herein had to do with the record in this suit as it then was, and as the record and facts were presented at that time. At the last hearing in the district court, however, we think the court erred in reversing the judgment of the county court, for the reasons hereinafter appearing.
Plaintiff admits that the substituted decree of the county court, which is involved here, “found all of the necessary facts which the original decree lacked.” With this admission by plaintiff there is no need for further reference to the recitals in the substituted decree.
But, in the former opinion, this “substituted decree” was not, of course, before the court. Nevertheless, as above noted, it “found all of the necessary facts.” And this is the decree which was pronounced and rendered by the court in the first instance, but, by inadvertence or mistake, it did not so appear in the record. Hence, on application, this substituted decree, which conformed to the facts, was properly filed and dated as of June 22, 1921, as above noted.
The decree passed on by this court, when it was first before us, did not reflect the findings of the county court, and the former opinion holds that the recitals in that decree were insufficient to constitute a valid decree. And in the former opinion the sufficiency of the petition was passed on, but this was not necessary to a determination of the case. So that the “law of the case” rule has no application where an immaterial fact is passed on which was not necessary to be decided. But, in all other respects, the former opinion herein is the law of the case, by which we are bound, and it need not be further discussed here.
[1] The amendment of the petition in the county court was a superfluous act. It was not necessary to amend the petition to confer jurisdiction, because, as hereinafter pointed out, the court already had jurisdiction. It follows that it is immaterial whether the original petition was amended or left as it was when it was filed. The real point in the case is: What judgment did the county court render at the close of the hearing in the first instance?
“The sufficiency of the petition is not a test of jurisdiction, as the court may commit an error in holding it sufficient; but this, if the court had jurisdiction, will...
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In re Warner's Estate
...of the powers of the court in respect of the cause of action before it. Woerner's American Law of Administration (3d ed.) sec. 144." Brandeen v. Lau, supra. " In a court of record, it is not essential that every jurisdictional fact appear upon the face of the record, and if a petition sets ......
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Elliott v. City of Auburn
...attack but conclusive against all the world unless reversed on appeal or avoided for error or fraud in a direct proceeding. Brandeen v. Lau, 113 Neb. 34, 201 N.W. 665; County of Douglas v. Feenan, 146 Neb. 156, 18 N.W.2d 740, 159 A.L.R. The case of Hiddleson v. City of Grand Island, 115 Neb......