Carroll v. Polfus

• Decision Date: 20 September 1915
• Docket Number: 18239
• Citation: 154 N.W. 213,98 Neb. 657
• Parties: OWEN C. CARROLL, APPELLEE, v. GOTTLIEB POLFUS, APPELLANT
• Court: Nebraska Supreme Court

154 N.W. 213

98 Neb. 657

OWEN C. CARROLL, APPELLEE, v. GOTTLIEB POLFUS, APPELLANT

No. 18239

Supreme Court of Nebraska

September 20, 1915

APPEAL from the district court for Harlan county: ERNEST B. PERRY JUDGE. Affirmed.

AFFIRMED.

John Everson and J. G. Thompson, for appellant.

O. E Shelburn, contra.

LETTON J. HAMER, J., not sitting.

OPINION

LETTON, J.

Action for specific performance of a contract for the exchange of real estate. The defense is that at the time the contract was entered into the defendant was in such a state of intoxication that he was incapacitated from entering into a contract or exercising judgment, and that the value of the property taken in exchange for that of defendant was and is grossly inadequate in value. At the request of defendant a jury was impaneled to make special findings of fact, which are as follows:

"If you find that the defendant did sign the contract, at the time it was signed was he so intoxicated that he was deprived of his reason and understanding to such an extent as to render him incapable of comprehending the character and consequences of his act? A. No.

"What was the fair market cash value of the property which the plaintiff, Owen C. Carroll, was to exchange for the property of defendant, at the date of the contract? A. Seventeen hundred dollars ($ 1,700).

"What was the cash market value of the property which the defendant Polfus then owned, and which the plaintiff claims he was to have for his property? A. Two thousand dollars ($ 2,000)."

The court also made like special findings. A decree was entered "that the plaintiff have a specific performance of his contract, upon reducing the incumbrance of his real estate (describing it) to $ 600 and no more, and upon reducing the incumbrance upon his meat market fixtures to $ 400 and no more; all of which is to be done within 20 days from this date." It is further adjudged that the defendant execute a deed to the property owned by him within 20 days, or that the decree operate as a conveyance. A motion for a new trial was filed and overruled. A supersedeas bond was filed and approved on March 7, 1913. The transcript and praecipe were filed in this court on August 26, 1913. On May 9, 1913, at the same term of court, a motion to dismiss the suit was filed by the defendant, for the reason that the plaintiff had not complied with the order reducing the incumbrance within 20 days from the date of the decree. The term adjourned on May 10 with this motion pending. On May 12 the defendant filed a motion for judgment upon the pleadings and the decree. Plaintiff made a special appearance to these motions, objecting to the jurisdiction of the court, for the reason that the defendant had superseded the judgment. The special appearance was overruled, and the motions of defendant for judgment and to dismiss the action were also overruled.

The first point urged is that the order that the plaintiff have specific performance when he reduced the incumbrance upon the property was a final order, and that, since the incumbrance upon the property had not been reduced as directed, the decree should have been set aside and judgment rendered for the defendant upon the pleadings. This motion was properly overruled. The decree had previously been superseded. In State Bank v. Green, 8 Neb. 297, 305, 1 N.W. 210, it is said: "Upon the bond being...