Eayrs v. Nason
| Decision Date | 03 March 1898 |
| Docket Number | 7841 |
| Citation | 74 N.W. 408,54 Neb. 143 |
| Parties | SARAH A. EAYRS, APPELLANT, ET AL. v. WILLIAM N. NASON, APPELLEE, ET AL |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Douglas county. Heard below before FERGUSON, J. Reversed.
REVERSED AND REMANDED.
C. C McNish, Brome, Burnett & Jones, and B. L. White, for appellant:
Where service by publication has been attempted to be made upon a resident defendant, founded upon a false affidavit of his non-residence, such service does not give jurisdiction over that defendant, and its validity can be inquired into in a direct proceeding between the parties to the judgment founded thereon.
An adjudication against an administrator is not res judicata as to the title of the heirs to real estate. (2 Black, Judgments par. 560; Wells, Res Judicata sec. 53.)
This action is not barred by the statute of limitations. (Heffner v. Gunz, 12 N.W. 342 [Minn.]; Feikert v. Wilson, 37 N.W. 585 [Minn.]; Miner v. Beekman, 50 N.Y. 337; Harrison v. Spencer, 51 N.W. 642 [Mich.]; Mutual Life Ins. Co. v. Corey, 7 N.Y.S. 940; Jackson v. Kinsey, 7 N.Y.S. 808; Waldo v. Rice, 14 Wis. 310; Knowlton v. Walker, 13 Wis. 295; Wagner v. Law, 28 P. 1109 [Wash.]; Bausman v. Kelley, 36 N.W. 333 [Minn.]; Stewart v. Thompson, 32 Cal. 260.)
James W. Carr, contra:
The affidavit for constructive service alleged the non-residence of Eayrs, and was in all respects sufficient to authorize service by publication. The proof of publication was also sufficient, as was shown by the evidence and found by the court. The court therefore had jurisdiction of the property whether the allegation of non-residence was true or not; and the judgment was neither void nor voidable because of a mistake in that respect. (Miller v. Finn, 1 Neb. 289; Atkins v. Atkins, 9 Neb. 191; Ogden v. Walters, 12 Kan. 283; Boswell v. Sharp, 15 O. 447; Dequindre v. Williams, 31 Ind. 444; Morgan v. Burnet, 18 O. 535; 1 Freeman, Judgments secs. 125, 131.)
The action was barred by the statute of limitations. (McAlister v. Lancaster County Bank, 15 Neb. 295; McCormick v. Paddock, 20 Neb. 486; Witte v. Gilbert, 10 Neb. 539; Doty v. Sumner, 12 Neb. 378.)
The judgment in the action brought by the administrator to recover the title of the property is a complete adjudication of all of the rights of plaintiffs. (Dundas v. Carson, 27 Neb. 634.)
The opinion contains a statement of the case.
This is an appeal by Sarah A. Eayrs from a decree of the district court of Douglas county dismissing a suit in equity brought by her in that tribunal against William N. Nason.
1. In her petition in the district court the appellant alleged that on the 3d day of June, 1875, her father became the owner of certain described real estate and died subsequently possessed thereof; that the title to said real estate had descended to her as his only surviving heir at law; that during her father's life he became indebted in the sum of $ 50 to one Fischer, and to secure the payment of this debt he executed to Fischer a mortgage upon said real estate, of which mortgage debt the appellee Nason subsequently became the owner, and brought suit in the district court of Douglas county to foreclose said mortgage obtained a decree, caused the real estate to be sold, and purchased it at the judicial sale made, and procured from the sheriff a deed for said real estate on the 1st of July, 1881, under which deed the appellee Nason claims title to the real estate in controversy; that said decree of foreclosure and all the proceedings thereunder were void for the reason that the service, and only service, of process had upon appellant's father in said foreclosure suit was by publication; that at the time said service by publication was made appellant's father was a resident of, and actually within, the state of Nebraska, was at that time, and for some time afterwards, insane, and that said service by publication was the only notice that was ever attempted to be given appellant's father of the pendency of the said foreclosure action; and that the sheriff's deed executed to said appellee constituted a cloud upon appellant's title to the real estate. The bill then averred that the real estate in controversy was vacant and unoccupied; that appellant was advised that the appellee had paid certain taxes which had been duly levied and assessed against the real estate, and which taxes, together with the aforesaid mortgage debt and interest thereon, the appellant offered to pay to the appellee. The bill concluded with a prayer that an accounting might be taken of the amount due the appellee for taxes paid on said real estate and for the amount due on said mortgage debt; that appellant might be permitted to pay the amount found due into court for the benefit of the appellee, and that the title to the real estate might be quieted and confirmed in her. The appellee by his answer admitted that he claimed to own the legal title to the real estate in controversy by virtue of the sheriff's deed executed in pursuance of the decree rendered in the foreclosure proceeding mentioned in the bill. He also averred that he had been in the open, notorious, exclusive, and adverse possession of the real estate described, claiming to own the same for a period of more than ten years; and as a further defense to the action averred that the administrator of appellant's father, in the year 1885, brought suit against him, the appellee, to quiet the title to the real estate in controversy; that he, the appellee, appeared and defended that action; and that judgment was rendered therein dismissing the same, and interposed the judgment in that action as a bar to this. The district court found specially that appellant was the sole surviving heir of James H. Eayrs, who died on the 15th of August, 1877; that he became possessed of the legal title to the real estate in controversy on the 3d day of June, 1875; that on the 23d of June, 1875, James H. Eayrs executed to one Fischer a note for $ 50 and a mortgage upon the real estate to secure its payment; that on the 18th of December, 1875, the appellee, who was then the owner of the mortgage debt, brought suit in the district court of Douglas county to foreclose the mortgage, obtained a decree, caused the property to be sold and purchased it at the judicial sale, and obtained from the sheriff on the 1st day of July, 1881, a deed for the property; that James H. Eayrs, from the 18th of July, 1875, until the day of his death, in August, 1877, was a resident of, and actually within, the state of Nebraska; that no service of process in the foreclosure proceeding was had upon James H. Eayrs, except service by publication; that a summons was duly issued in that proceeding against James H. Eayrs and returned not found in Douglas county, Nebraska; that the notice of publication was published in a newspaper in the city of Omaha; that the premises in controversy were on the 25th of June, 1875, and ever since that time have been, vacant and unoccupied; that on the 20th of February, 1885, the administrator of James H. Eayrs brought a suit in the district court of Douglas county against the appellee on the same cause of action on which the appellant has brought this action; that the appellee Nason appeared and defended that action, which resulted in a judgment of dismissal. From these special findings the court concluded as a matter of law (1) that the appellant's action here was barred by the judgment recovered in the action brought by the administrator of appellee's father against the appellee; and (2) that the appellant's cause of action here was barred, when brought, by the statute of limitations.
2. Was the foreclosure decree rendered by the district court of Douglas county in the suit of appellee against appellant's father void? We think it was. Appellant's father, at the time of the institution of that suit and at the time of the pronouncing of that decree, was a resident of, and actually within, the state of Nebraska. The entire tract of land upon which the mortgage was a lien was situate in Douglas county, Nebraska. The action to foreclose the mortgage then could have only been brought in that county. (Code of Civil Procedure, sec. 51.) The appellant's father did not appear in that action, and the only notice that he had of its pendency was a constructive one; that is service by publication as provided by sections 77 and 78 of the Code of Civil Procedure. Appellant's father was the owner of the legal title to the land upon which the mortgage foreclosed in that suit was a lien, and was therefore a proper and a necessary party to that suit. He was a resident of, and actually present within, the state of Nebraska, and therefore no valid notice of the pendency of the suit could be given him by publication. In such an action as that personal notice of its pendency to one who is a necessary and proper party defendant thereto must be given by service upon him of a summons, unless such defendant is both a non-resident of the state and absent therefrom or a foreign corporation. The district court had jurisdiction of the subject-matter of the action in the foreclosure case. In that case an affidavit was filed in accordance with section 78 of the Code of Civil Procedure, which recited that the appellant's father owned the real estate on which it was sought to foreclose the mortgage; that he was a non-resident...
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