Brownlee v. Davidson

• Decision Date: 18 February 1890
• Citation: 45 N.W. 51,28 Neb. 785
• Parties: BROWNLEE v. DAVIDSON.
• Court: Nebraska Supreme Court

28 Neb. 785

45 N.W. 51

BROWNLEE

v.DAVIDSON.

Supreme Court of Nebraska.

Feb. 18, 1890.

Syllabus by the Court.

1. A district court has power to correct at a subsequent term of court any errors or defects in the record of its judgments which occurred through the mistake or neglect of its clerk, so as to make the judgment entry correspond with the judgment actually rendered.

2. Notice must be served on the opposite party of an application to correct such errors. It will be presumed that notice was given, in the absence of a showing to the contrary.

3. Before error can be predicated upon the failure of a district court to render a deficiency judgment, it must appear that the court refused to render one when requested to do so.

Error to district court, Otoe county; CHAPMAN, Judge.Edwin F. Warren, for plaintiff in error.

D. T. Hayden, for defendant in error.

NORVAL, J.

In 1887 an action was brought in the district court of Otoe county, by Ebeneezer Brownlee in his life-time, against the defendant, Jane C. Davidson. From the allegations of the amended and supplemental petitions it appears that Mrs. Davidson owned the life-estate in certain lands in Otoe and Nuckolls counties, and refused to keep the taxes paid thereon; and to protect the interests of the remainder-men, the plaintiff, Brownlee, for himself and others, paid the same, amounting to several hundred dollars. The object of this suit is stated in the prayer of the amended and supplemental petition thus: “Wherefore plaintiff prays for a decree ordering, adjudging, and decreeing said sums of money, and the interest thereon, a lien upon the said described lands, and upon the interest of the said defendant therein; that unless the same shall be paid by a certain day, to be fixed by the court, that the interest of the said defendant in and to said lands, to-wit, her life-estate therein, or so much thereof as may be necessary, may be sold as upon sales under mortgage foreclosure; that out of the proceeds arising from such sale there may be paid-- First, the costs of this action, and of such sale; second, the sum so as aforesaid to be found due this plaintiff for taxes paid and interest, and for such other or further order or relief in the premises as equity and good conscience may suggest, the circumstances of this case considered.” The defendant answered, and on the 7th day of June, 1888, the court found the issues in favor of the plaintiff, and “adjudged, ordered, and decreed that the plaintiff have and recover of and from the said defendant the sum of $970.89 and costs; and it is further ordered, adjudged, and decreed that the said plaintiff have a lien upon the interest of the defendant in said premises for said sum so found due, and costs.” The remainder of the decree is the same as in mortgage foreclosures. On the last day of the succeeding term of court in Otoe county, to-wit, November 16, 1888, the defendant filed with the clerk of said court her application for the correction of said journal entry, stating therein, among other grounds, “that by a mistake in the preparation of said decree * * * personal judgment was rendered against said defendant, and in favor of said plaintiff, for the aforesaid sum; whereas, no such judgment or finding has been entered by said court, or asked for in plaintiff's petition, but that the same was an error and mistake which should be corrected by this court.” On the 4th day of January, 1889, the plaintiff procured an order of sale to be issued on said decree, the Otoe county lands were sold thereunder, sale confirmed, and the sheriff ordered to execute a deed to the purchaser at said sale. On the 2d day of May, 1889, the said district court entered upon its journal the following correction of the journal entry of June 7, 1888, to-wit: “This cause came on for hearing on the motion of ...