Carlow v. C. Aultman & Co.

• Decision Date: 04 February 1890
• Citation: 28 Neb. 672,44 N.W. 873
• Court: Nebraska Supreme Court
• Parties: CARLOW ET AL. v. C. AULTMAN & CO.

28 Neb. 672

44 N.W. 873

CARLOW ET AL.

v.C. AULTMAN & CO.

Supreme Court of Nebraska.

Feb. 4, 1890.

Syllabus by the Court.

1. The district court has no power to vacate or modify its own judgments or orders after the term at which such judgment or order was made, unless there exists at least one of the grounds mentioned in section 602 of the Civil Code. Held, that the matters stated at length in the opinion were not sufficient to entitle the plaintiffs in error to a vacation of the decree.

2. When a defendant in action files his answer and cross-petition within the time fixed by law, he is not required to give to the other parties to the suit any notice of the filing of such pleading.

3. Where the first publication notice of a sheriff's sale was made March 16th, the last April 13th, and the notice was published in every issue of the paper between the date of the first publication and April 16th, the day of sale, held sufficient.

4. While section 1 of chapter 65 of the Laws of 1887 was in force, C. Aultman & Co., a foreign corporation, purchased real estate in this state at a judicial sale. Held, that its title is valid against every one but the state, and can be divested only by proceedings brought by the state for that purpose.

5. In order to review the proceedings in the trial of an equity cause by a petition in error, a motion for a new trial must be filed, as in an action at law.

Error to district court, Fillmore county; MORRIS, Judge.F. B. Donisthorpe and Robert Ryan, for plaintiffs in error.

Sawyer & Snell, for defendants in error.

NORVAL, J.

On the 8th day of April, 1886, Frederick Curtis commenced a suit in the district court of Fillmore county, Neb., to foreclose a mortgage upon the S. 1/2 of the S. W. 1/4 of section 14, township 5, range 3 W., given to secure a note in the sum of $160, executed by Josephine Carlow and Charles H. Carlow. C. S. Cleveland and C. Aultman & Co. were made parties defendant. Personal service was had upon the Carlows, and they were required to answer by the 10th day of May, 1886. Service was made by publication upon C. Aultman & Co., and it was required to answer on or before the 17th day of May, 1886. On that day the company filed its answer and cross-petition. The defendant Charles H. Carlow filed no pleading, and was duly defaulted. His wife filed an answer, and on the 29th day of May, 1886, the case was heard, and a decree rendered in favor of Frederick Curtis for $184.12, and the property ordered sold to pay Curtis; and the surplus, if any, was to be paid to the clerk of the court, to abide further orders. At the same time C. Aultman & Co. were given leave to plead to the answer of Josephine Carlow. On the 3d day of November, 1886, the cause was heard on the demurrer of C. Aultman & Co. to the answer of Josephine Carlow. The court sustained the demurrer, and entered judgment in favor of C. Aultman & Co. for $536.10, and decreed that, after paying the costs and the amount found due Curtis, then the surplus should be applied to the payment of the amount found due C. Aultman & Co. An order of sale was issued on the 28th day of February, 1887; and on the 16th day of April, 1887, the property was sold to C. Aultman & Co., it bidding it in in order to protect its lien. On the 31st day of May, 1887, an order was made to show cause by Thursday morning why the sale should not be confirmed. On the 2d day of June the court found that the sale had been conducted in all respects according to law, and it was duly confirmed. The sale was made under the Curtis decree, and not under the one in favor of C. Aultman & Co. On the first day of February, 1888, the said Josephine Carlow and Charles H. Carlow filed a petition to have the decree of C. Aultman & Co. vacated, and the order of confirmation and the sheriff's deed set aside. C. Aultman & Co. demurred to this petition, and the demurrer was overruled, but at the same time the cause was submitted upon the pleadings and evidence. The district court denied a rehearing, and C. H. Carlow took an exception. The Carlows bring the case to this court on error.

The first objection urged is that the district court had no jurisdiction over the person of the defendant C. H. Carlow, as to the ...