Enquist v. Enquist

• Decision Date: 18 January 1946
• Docket Number: 31970.
• Citation: Enquist v. Enquist, 146 Neb. 708, 21 N.W.2d 404 (Neb. 1946)
• Parties: ENQUIST v. ENQUIST. CRONIN v. EHLERS.
• Court: Nebraska Supreme Court

21 N.W.2d 404

146 Neb. 708

ENQUIST v. ENQUIST.

CRONIN v. EHLERS.

No. 31970.

Supreme Court of Nebraska

January 18, 1946

Syllabus by the Court.

1. When one has filed a special appearance pro se, challenging the jurisdiction of the court, but remains in court and takes part in the trial, he thereby waives the failure of the court to rule on his special appearance, and has made a general appearance.

2. To make an appearance in court special, and not general every act must be consistent with the theory that the court has no jurisdiction of the person.

3. The homestead right of exemption of real property is not a proper subject for consideration upon proceedings for the confirmation of a sale of the alleged homestead on execution.

4. A bidder at a judicial sale whose bid has been accepted may appeal from an order setting the sale aside.

5. It is a well settled rule that the doctrine of caveat emptor applies to all judicial sales, subject to the qualification that the purchaser is entitled to relief on the ground of after-discovered mistake of material facts or fraud, where he is free from negligence.

6. It is error for a trial court to direct disposition of the money paid in by a successful bidder at a sheriff's sale on execution when no defect appears in the sale and the same has not been set aside.

W A. Ehlers, pro se, of Omaha, for appellant.

Charles A. Fryzek and A. J. Whalen, both of Omaha, for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.

PAINE Justice.

In a sheriff's sale of real estate on an execution, the return of the sheriff appearing to be regular, the sale was confirmed and a sheriff's deed delivered. The judgment creditor, upon receipt of the full amount due him, discharged of record and released his judgment. Thereafter, at the same term of court, the trial judge set aside the confirmation of the sale, but the sheriff's sale itself still stands. Later, upon application of the purchaser of the property at the sheriff's sale, the court directed that the judgment creditor repay the money he received from the clerk of the court, from which order such judgment creditor appeals.

An examination of the transcript shows that this action grew out of a divorce case, in which a petition was filed against her husband by Ellen Enquist on August 20, 1925. On May 17, 1926, both parties appeared in court by their attorneys, and upon motion of plaintiff's attorney the cause was dismissed, and on motion of W. A. Ehlers, defendant's attorney, he was allowed an attorney's fee of $35, to be taxed as part of the defendant's costs.

On December 12, 1938, the judgment for said $35 was revived and renewed, with interest at 7 per cent and all accruing costs. On December 10, 1943, an execution was duly issued, and the sheriff's return shows that on December 21, 1943, he levied the writ of execution upon lot two (2) of a subdivision of block five (5) in Park Place in the city of Omaha, and that thereafter the sheriff published notice for five weeks that he would sell said land at the east door of the Douglas County courthouse on February 8, 1944, at 9:30 a.m., at public auction.

The return of the sheriff shows that at said time and place he sold said real estate to Teresa C. Cronin for the sum of $180, being the highest amount offered, and that the sheriff delivered said sum of $180 to the clerk of the district court.

On February 16, 1944, the purchaser filed motion for confirmation of said sale, and the following day the district court ratified, approved and confirmed said sale, and directed the sheriff to make a deed to the purchaser, and directed that a writ of assistance be issued by the clerk, upon application therefor, to place purchaser in possession of the property.

On February 19, 1944, the sheriff's return to confirmation shows that he had executed the deed, and on February 21, 1944, deed was delivered to William A. Ehlers, attorney for purchaser. On the same day a voucher was paid to said Ehlers for $111.32, who thereupon made an entry on the appearance docket reading as follows:

'Omaha, Neb. Feb. 21, 1944. Full and complete satisfaction of Judgment, interest and costs in this case is hereby acknowledged, and said judgment is hereby released, satisfied and discharged of record.

'Witness:

'William A. Ehlers

'Atty. for Pltf.'

'David E. Larson

'Deputy Clerk.

Thereafter, on March 14, 1944, an amended motion was filed by John Enquist, defendant, asking the court to set aside the sale of said property, and setting out 11 grounds therefor. It is alleged that the property has a reasonable value of $1,800, and consists of a five-room house, and that a sale for $180 is not a fair or reasonable sale; that the defendant received no notice of said sale, and the property is the homestead of the defendant, and was at the time of the confirmation of the sale, and now is occupied by him; that John Enquist and his wife Ellen never waived their homestead rights to said property. He prays that the court set aside the sheriff's sale.

On March 22, 1944, the trial court entered an order upon said motion, reciting that the court finds the facts are true and defendant is entitled to the relief prayed for. The order further recited:

'It is therefore ordered, considered, and adjudged by the Court that the order of confirmation of sale relative to the above described property entered herein on the 8th day of February, 1944, be and the same hereby is vacated and set aside and rendered void and held for naught.

'Plaintiff not appearing, although properly notified.'

It will be noted that a careful reading of the trial court's order does not disclose any setting aside of the sale, hence the sheriff's sale made on the execution stands as made.

There appears in the transcript an order, signed by all the district judges, to the effect that the term of the district court which began on February 7, 1944, adjourned sine die on April 29, 1944.

On December 26, 1944, the purchaser filed an application asking that an order to show cause by January 3, 1945, be issued in said case, directed to William A. Ehlers, to show cause why the court should not require William A. Ehlers to pay to purchaser $111.32 and that the clerk pay the balance of said money in his hands to purchaser. Applicant further prays that such order be directed to said Ehlers to show cause why the district court should not place all parties in statu quo.

On December 29, 1944, said Ehlers filed a special appearance, in which he objects to the jurisdiction of the court over his person because his judgment has been fully paid, released and discharged of record, and that the court is without jurisdiction to set aside said satisfaction, release and discharge of said judgment without the positive consent of the judgment creditor and the judgment debtors, and no such consent appears of record.

The respondent charges that the order setting aside the confirmation of sale is an absolute nullity, because no petition therefor was filed, no service of summons had upon any of the parties, and the order was unauthorized and...