Fairley v. Kemper

• Decision Date: 21 December 1962
• Docket Number: No. 35288,35288
• Citation: 118 N.W.2d 754,174 Neb. 565
• Parties: Carol C. FAIRLEY and Mary E. Fairley, Appellees, v. Arthur J. KEMPER et al., Appellees, Impleaded with Jean F. Clouatre, Appellant.
• Court: Nebraska Supreme Court

Page 754

118 N.W.2d 754

174 Neb. 565

Carol C. FAIRLEY and Mary E. Fairley, Appellees, v. Arthur J. KEMPER et al., Appellees Impleaded with Jean F. Clouatre, Appellant.

No. 35288.

Supreme Court of Nebraska.

Dec. 21, 1962.

Syllabus by the Court

1. It is not necessary that a summons be served on a cross-petition filed after answer day on defendants who thereafter file answers to the original petition and who are represented by attorneys at the trial of the case.

2. A private tax sale certificate on which action has been properly commenced within the period prescribed by section 77-1856, R.R.S.1943, will not become void by reason of the period of time which thereafter transpires during the pendency of the action.

3. A court acquiring jurisdiction of property for partition acquires complete jurisdiction of the property and affords complete justice to all parties in that action with respect to the subject-matter.

Barney, Carter & Buchholz, Lincoln, for appellant.

Mason, Knudsen, Dickeson & Berkheimer, Lincoln, for Fairley.

Kier, Cobb & Luedtke, Janice L. Gradwohl, Lincoln, for Kemper et al.

Heard before SIMMONS, C. J., and MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

BROWER, Justice.

This is a partition action brought by the plaintiffs Carol C. Fairley and Mary E. Fairley in the district court for Lancaster County, Nebraska, to partition a single lot in Lincoln, Nebraska. All of the defendants were either served with process or appeared in the action.

Plaintiff Carol C. Fairley and defendant Arthur J. Kemper each owned an undivided one-half of the premises.

The defendants Germain W. Vaughn and Mrs. E. Ferne Vaughn were tenants in possession of the premises. The Lincoln Telephone and Telegraph Company, a corporation, had an easement thereon. Edna P. Sorenson had a mortgage on the plaintiff Carol C. Fairley's interest therein which was assigned to him during the litigation and merged in his title. The defendants City of Lincoln, Nebraska, and County of Lancaster, Nebraska, had liens for taxes thereon which taxes were subsequent in time, and therefore prior in right, to the taxes in the tax sale certificate involved in this controversy. The plaintiff Mary E. Fairley was the spouse of Carol C. Fairley and had no interest therein except as such spouse. Carol C. Fairley will be hereinafter referred to as plaintiff. None of the rights of any of the defendants in this paragraph mentioned are in dispute and will not be discussed further.

The real controversy is with respect to the rights of the defendant named in the plaintiff's petition as Felix G. Clouatre, but whose true name was Jean F. Clouatre. He will be designated by his proper name or in some instances as Clouatre.

Clouatre's claim arose by reason of the lien of a tax sale certificate No. 25258, dated August 28, 1956, upon the premises involved in the partition suit. It was issued to him by the treasurer of Lancaster County, Nebraska, for the taxes of the county of Lancaster and city of Lincoln for the year 1954. The subsequent county and city taxes were thereafter paid by him up to and including the year 1957, and the city taxes for the year 1958.

The district court in the judgment in partition, rendered after a trial of the issues, found that Clouatre had no lien on the premises by reason of his tax sale certificate because he had failed to comply with section 77-1856, R.R.S.1943, and more than 5 years had passed since the date of the certificate.

Clouatre filed a motion for new trial and has appealed to this court from the order of the district court overruling the same.

Clouatre assigns several errors in the trial court's rulings, among which are that it erred in the following respects: In holding Clouatre had no lien on the premises under his tax sale certificate, dated August 28, 1956; in holding he had failed to comply with section 77-1856, R.R.S.1943, when he was made an original party defendant in the action by the petition of the plaintiff which set forth the nature and extent of his lien, and when thereafter with leave of court he filed an answer and cross-petition; in holding Clouatre's tax sale certificate was barred by statute of limitations under the state of the record disclosed in the action and hereinafter discussed; in failing to hold the plaintiff's petition was a sufficient foundation for the relief sought by Clouatre's cross-petition; and in failing to hold that the failure of any party at the trial to object to the admission of the documentary evidence offered in support of Clouatre's claim amounted to a waiver of any defect arising from the fact that no service of process was had on the cross-petition.

We sustain these assignments.

It is not clear whether the basis of the trial court's ruling that the defendant Clouatre had not complied with section 77-1856, R.R.S.1943, rests upon the theory that Clouatre had not commenced his action within 5 years from the date of his tax sale certificate; or whether the court held that the action had to proceed to judgment within the 5-year period; or whether his lien could not be adjudicated in a partition action.

Plaintiff's petition in partition was filed February 10, 1961. It made Clouatre a party defendant and set out that he had a tax sale certificate on the premises, describing it by number, and stating the amount of the taxes originally and subsequently paid thereunder. It asked for a determination of the rights of the parties, a partition of the premises, and, if it could not be equitably divided, a sale thereof. All of the defendants except Clouatre were served with summons requiring them to answer on March 27, 1961. Clouatre filed a voluntary appearance April 10, 1961, reserving the statutory time to plead. On August 15, 1961, after obtaining leave of court, Clouatre filed his answer and cross-petition out of time, setting up the cause of action on his tax sale certificate; and praying for an accounting of the amount due to be made a first lien thereon, and that the premises be sold and on the sale thereof the amount of the lien be paid to him on his cross-petition. The defendant Kemper, on August 16, 1961, filed an answer to plaintiff's petition containing a denial on information and belief of the paragraph in that petition describing the claim of Clouatre on his tax sale certificate. It also prayed that an accounting be had; that the rights of the parties be determined; that the validity of any tax sales or tax liens be determined; and that any taxes be declared a paramount lien against the interest of the plaintiff against whom a cross-petition was filed asking for an accounting for rents received by him.

All this occurred before the expiration of 5 years from the date of Clouatre's tax sale certificate which period expired August 28, 1961.

On January 17, 1962, a trial of the issues took place at which all of the parties except the tenants and defendant Sorenson were represented by counsel. The tax sale certificate and tax receipts of defendant Clouatre were offered in evidence and received without objection by anyone.

The issues with respect to Clouatre's cross-petition were between Clouatre and the plaintiff and defendant Arthur J. Kemper, the owners of the premises partitioned. The rights of the other defendants are not affected thereby.

The plaintiff at his option made Clouatre a party as permitted by our statute on partition, section 25-2172, R.R.S.1943. His petition set out the claim of Clouatre and asked the rights of the parties be determined. Clouatre's answer and cross-petition filed out of time set out...