Dryden v. Parrotte

• Decision Date: 20 February 1901
• Docket Number: 11,403
• Citation: 85 N.W. 287,61 Neb. 339
• Parties: JOHN N. DRYDEN ET AL., APPELLEES, v. MARCUS L. PARROTTE ET AL., APPELLANTS
• Court: Nebraska Supreme Court

85 N.W. 287

61 Neb. 339

JOHN N. DRYDEN ET AL., APPELLEES, v. MARCUS L. PARROTTE ET AL., APPELLANTS

No. 11,403

Supreme Court of Nebraska

February 20, 1901

APPEAL from the district court for Buffalo county. Heard below before SULLIVAN, J. Affirmed.

AFFIRMED.

Hamer & Hamer, for appellants.

Dryden & Main, contra.

OPINION

SULLIVAN, J.

This is an appeal from an order confirming a judicial sale of real estate situate in Buffalo county. Appellants contend that confirmation should have been refused because the sale was made in execution of a void judgment. The facts are undisputed, and the rule of law applicable to the facts is well understood. The action was commenced by Dryden and Main who filed in the district court a petition in which they alleged that on April 12, 1888, John Johnson recovered a judgment in this court against Marcus L. Parrotte and Lewis W. Parrotte amounting to about $ 1,200; that Johnson afterwards brought a creditor's bill against the Parrottes and others, and on June 29, 1894, obtained a decree establishing his judgment as a first lien upon the land now in question; that this decree was brought here for review on December 29, 1894, but was not superseded until January, 1895; that on September 15, 1894, Dryden and Main succeeded to the rights of Johnson as good-faith purchasers of his interest in the litigation. The petition then states that the decree of June 29, 1894, in favor of Johnson, was reversed by this court, and continues: "That the reversal of said judgment in nowise affected the rights of these plaintiffs acquired when said judgment was in full force and effect; but plaintiffs allege that such reversal would constitute a cloud upon the title of any one purchasing said land hereinbefore described when sold upon said judgment." The plaintiffs prayed that the judgment rendered in this court in favor of Johnson and against the Parrottes be adjudged to be a first lien upon the land described in the petition, and that they have such other relief as might be proper. The defendants were duly served with summons; they appeared in the action; issues were joined; a trial was had, and the court having found in favor of the plaintiffs, rendered a judgment giving them the relief for which they prayed. Upon this judgment no direct attack has ever been successfully made, and it can not, of course be assailed collaterally unless it is affected by some jurisdictional infirmity. If it had appeared on the face of the petition that the judgment which was the basis of the plaintiffs' action was void, and had been so adjudged by this court, it would not follow that the decision of the district court enforcing such judgment would be a nullity. Whether the facts stated in the petition constituted a cause of action and entitled the plaintiffs to relief, was a judicial question which the trial court had authority to consider and decide; and it is a universal principle--an axiom of the law--that where a court has jurisdiction of both the subject-matter and the parties, power to decide implies authority to decide...