Fisk v. Thorp
| Decision Date | 17 March 1897 |
| Citation | 70 N.W. 498,51 Neb. 1 |
| Parties | FISK v. THORP ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. On the hearing of a motion to vacate or modify the judgment of a district court after a term at which it was rendered, there must be reasonable notice to the adverse party or his attorney in the action.
2. Reasonable notice is such as is meet and fair, in view of the circumstances and conditions existent at the time and with reference to the matter to be presented.
3. Held that, if sufficient notice was not given of the hearing of a motion in the present case, it was not prejudicial to the rights of the complaining party, inasmuch as the hearing was adjourned to a subsequent date, which afforded ample time for the preparation to oppose the motion.
4. A judge of the district court has no jurisdiction at chambers to hear and decide a motion to vacate a judgment made after the term at which the judgment was rendered.
5. If a statute, in terms, confers jurisdiction to hear matters on a court as contradistinguished from a judge thereof, as a rule such matters must be heard in court, and not before a judge at chambers or in vacation.
6. Unless expressly or impliedly empowered by statute to change the venue of a trial or hearing on its own motion, a court has no power to do so. 4 Enc. Pl. & Prac. 448.
7. The statute of this state does not provide that a district court may, on its own motion, order a change of venue in a cause or matter for hearing before it.
Error to district court, Dawes county; Bartow, Judge.
Action by Anna L. Fisk against Russell Thorp and others. From an order vacating a judgment in her favor, plaintiff brings error. Reversed.
Allen G. Fisher, for plaintiff in error.
E. W. Dailey, for defendants in error.
On the 10th day of February, 1892, the plaintiff in error herein commenced two actions in the district court of Sioux county, each for the foreclosure of a real-estate mortgage, and judgment against certain of the parties for any of the amount of debt unsatisfied by the application of the proceeds of the sale of the lands under the mortgage. The actions proceeded to decrees of sales of the mortgaged premises, and confirmations of the sales, and deficiency judgments were rendered against certain of the defendants therein, including Russell Thorp and Josephine C. Thorp, defendants in error herein. During a term of court subsequent to the entry of the deficiency judgments there was presented for the Thorps a motion the object of which was the vacation of the judgments as to the moving parties. This motion was made under the portion of section 602 of the Code of Civil Procedure designated “Third,” wherein, as a ground for a district court to vacate or modify its judgment after the term at which it was rendered, it is stated that it may be for “irregularity in obtaining a judgment. * * *” The motion was called for hearing May 1, 1894, during a session of a term of court in Sioux county, and, after overruling a challenge to the jurisdiction of the court, it was ordered that it be heard at district court in Chadron, Dawes county, on May 28, 1894, to which place and time the hearing was adjourned. The motion and accompanying transcript were transferred to Dawes county, and, when the matter came up in court or before the judge in accordance with the prior order, the counsel for plaintiff in error challenged the jurisdiction of the court to hear the matter at such place. This objection was overruled, and subsequently both parties participated in a hearing on the motion at Chadron, as a result of which the deficiency judgments against the Thorps were vacated. It is claimed that there was no sufficient notice of the motion. In section 604 of the Code of Civil Procedure it is prescribed that a motion of the character of the one in this case shall be “upon reasonable notice to the adverse party or his attorney in the action.” A reasonable notice of the hearing of a motion is such notice as is meet and fair, in view of the circumstances and conditions existent at the time in the matter to be...
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Government Employees Ins. Co. v. Burns
...absence of a challenge. Md. 1, 660 A.2d 412 (1995); State ex rel. Edu-Dyne Sys., Inc. v. Trout, 781 S.W.2d 84 (Mo.1989); Fisk v. Thorp, 51 Neb. 1, 70 N.W. 498 (1897); Powers v. Delaware & H.R. Corp., 15 A.D.2d 620, 222 N.Y.S.2d 362 (1961); Stevens v. Blevins, 890 P.2d 936 (Okla.1995); Garzo......
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Fisk v. Thorp
...on its own motion; and the order entered vacating the judgment was reversed, and the cause remanded for further proceedings. Fisk v. Thorp, 51 Neb. 1, 70 N. W. 498. The principal error in the present proceedings alleged and relied on, as argued in the brief of counsel for plaintiff in error......
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Krieger v. Schroeder, 34285
...N.W. 869: 'A judge at chambers possesses no jurisdiction to vacate or modify orders or judgments of the district court.' In Fisk v. Thorp, 51 Neb. 1, 70 N.W. 498, 499, it is said: 'Our statute does not confer power upon a judge, as contradistinguished from a court, to hear a motion to vacat......
- Fisk v. Thorp