Douglas County v. Barker Company

• Decision Date: 20 July 1933
• Docket Number: 28529
• Citation: 249 N.W. 607,125 Neb. 253
• Parties: DOUGLAS COUNTY, APPELLEE, v. BARKER COMPANY ET AL.: MICHAEL P. JORDAN, APPELLANT
• Court: Nebraska Supreme Court

249 N.W. 607

125 Neb. 253

DOUGLAS COUNTY, APPELLEE, v. BARKER COMPANY ET AL.:

MICHAEL P. JORDAN, APPELLANT

No. 28529

Supreme Court of Nebraska

July 20, 1933

APPEAL from the district court for Douglas county: FRANCIS M DINEEN, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. To secure a limited review of an equity case, a motion for a new trial in the court below is not required.

2. Matters embraced in or concluded by a judicial judgment or decree, after the lapse of more than two years from the due entry thereof, may not afford basis of motion to vacate, or of objections to a sheriff's sale made pursuant thereto.

3. The determination that section 77-2039, Comp. St. 1929, was constitutional, as announced in Commercial Savings & Loan Ass'n v. Pyramid Realty Co., 121 Neb. 493, 237 N.W. 575, approved.

4. Evidence examined, and held to sustain the judgment of confirmation entered in the district court.

Appeal from District Court, Douglas County; Dineen, Judge.

Suit by Douglas County against the Barker Company and others, impleaded with Michael P. Jordan. From an order confirming a tax foreclosure sale, Michael P. Jordan appeals.

Affirmed.

A. H. Murdock, for appellant.

Henry J. Beal, H. C. Schoening and C. F. Connolly, contra.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ.

OPINION

EBERLY, J.

This is an appeal by Michael P. Jordan from an order of confirmation entered in the above entitled cause on April 19, 1932, the same being a tax foreclosure carried on pursuant to section 77-2039, Comp. St. 1929.

The transcript on appeal filed in this court commences with an order of sale issued upon a tax foreclosure proceeding brought by the county of Douglas pursuant to the provisions of sections 77-2039 et seq., Comp. St. 1929. Then follows: "Sheriff's Return To Order Of Sale, Proof Of Publication, Objections To Confirmation of Sale," and motion to set aside the same filed by the appellant; "Motion To Confirm Sale" (by county of Douglas); order of the district court for Douglas county overruling objections and confirming sale, and notice of appeal. Appellant has also filed, as part of his record, a bill of exceptions duly allowed containing evidence presented to the trial court upon the hearing of his objections to confirmation.

Appellee challenges the right of this court to consider the evidence preserved in the bill of exceptions for the reason that appellant filed no motion for a new trial as required by sections 20-1142, 20-1143, and 20-1144, Comp. St. 1929. The cases of In re Estate of Buder, 117 Neb. 52, In re Estate of Swan, 82 Neb. 742, 118 N.W. 478, Young v. Estate of Young, 103 Neb. 418, 172 N.W. 49, and Dunham v. Courtnay, 24 Neb. 627, 39 N.W. 784, are cited as supporting this contention.

It is to be observed that the cases cited are law actions, as distinguished from actions in equity. The sections of the statute cited, in identical terms, formed a part of our first Civil Code, originally adopted in 1866. As to the form of the action necessitated by the facts of the present case, the controlling statute is a direction "to foreclose the lien for all taxes then delinquent, in the same manner, except as herein provided, and with like effect as if such lien were a mortgage." Comp. St. 1929, sec. 77-2039.

This procedure necessarily invokes equitable jurisdiction and implies the exercise of equitable powers. Indeed, it must be deemed an adequate authorization for the maintenance of a suit in equity for the foreclosure of tax liens. County of Lancaster v. Rush, 35 Neb. 119, 52 N.W. 837; County of Lancaster v. Trimble, 34 Neb. 752, 52 N.W. 711; Logan County v. Carnahan, 66 Neb. 693, 95 N.W. 812.

Prior to 1905, under the provisions of section 675 of the Civil Code then existing, an appeal in actions in equity was provided in which no motion for a new trial was necessary. Swansen v. Swansen, 12 Neb. 210, 10 N.W. 713; Smith v. Silver, 58 Neb. 429, 78 N.W. 725.

Section 1, ch. 174, Laws 1905, was next enacted, which, except as to the time limited for filing of transcript on appeal, was identical with section 20-1912, Comp. St. 1929. In construing this language, this court declared: "To secure a review of an equity case in this court, the filing of a motion for a new trial in the court below is not required." Further, that "the amendment of 1905 did not change this rule." Ogden v. Garrison, 82 Neb. 302, 117 N.W. 714. See, also, Dodge v. Healey, 103 Neb. 180, 170 N.W. 828. It follows that in the instant case, notwithstanding the absence of a motion for a new trial, the evidence contained in the bill of exceptions is properly for our consideration.

Taking up the objections to confirmation of the sale, in the light of the evidence in the record, it must be remembered that, in a mortgage foreclosure, "the only matter settled and adjudicated in the proceedings and order of confirmation is as to the proceedings of the sheriff and those acting under and with him in the levy,...