Fisk v. Thorp

CourtNebraska Supreme Court
Writing for the CourtHOLCOMB
Citation60 Neb. 713,84 N.W. 79
PartiesFISK v. THORP ET AL.
Decision Date08 November 1900

60 Neb. 713
84 N.W. 79

FISK
v.
THORP ET AL.

Supreme Court of Nebraska.

Nov. 8, 1900.



Syllabus by the Court.

1. In the absence of a proper bill of exceptions, on error to this court it will be conclusively presumed that there was introduced before the trial court sufficient evidence to sustain the order or judgment rendered.

2. By appearing in a case and invoking the powers of the court to set aside a judgment as having been irregularly obtained, jurisdiction is given to the court over the parties appearing as to all proceedings had in the case.

3. Such appearance in no way militates against the authority of the court to hear and determine an application to vacate a judgment because of an alleged irregularity in obtaining it.

4. Under the provisions of section 602 et seq. of the Civil Code, in a proceeding to vacate a judgment on account of irregularity in obtaining it, it is not necessary to tender an answer with a motion to vacate such judgment. Under these provisions the court may first try and determine upon the grounds to vacate, and then determine whether there is a valid defense. This may be found from the evidence offered in support of the motion filed, asking the vacation of the judgment.


Error to district court, Sioux county; Westover, Judge.

Action by Anna L. Fisk against Russell Thorp, Jr., and others. Judgment for defendants, and plaintiff brings error. Affirmed.

[84 N.W. 79]

Allen G. Fisher, for plaintiff in error.

A. W. Crites, for defendants in error.


HOLCOMB, J.

We are asked in this case to review the proceedings had in the district court on a motion to set aside and vacate a deficiency judgment rendered against defendants in error, and to reverse the order entered sustaining such motion. The motion was filed after the term at which the judgment

[84 N.W. 80]

was rendered, and the application is made under the provisions of subdivision 3, § 602, Civ. Code, on the ground of “irregularity in obtaining a judgment.” By error proceedings from a similar order of the trial court on the same motion, the case has once before been here for review. In the opinion then rendered it was held that the court had no jurisdiction at chambers to hear and decide the motion, and was also without power to order a change of venue of the hearing 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...

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11 practice notes
  • Bd. of Com'rs of Guadalupe County v. Dist. Court of Fourth Judicial Dist., No. 2911.
    • United States
    • New Mexico Supreme Court of New Mexico
    • January 17, 1924
    ...of the writ. See Crowell v. Kopp, 26 N. M. 146, 189 Pac. 652, where the New Mexico cases are collected. See, also, Fiske v. Thorp, 60 Neb. 713, 84 N. W. 79; 4 C. J. Appearances, § 64. [6] 6. Mr. Edward D. Tittman appeared as amicus curiæ and pointed out some constitutional and statutory pro......
  • Clawson v. Boston Acme Mines Development Co., 4541
    • United States
    • Supreme Court of Utah
    • February 11, 1928
    ...R. Fruit Co. et al., 126 Cal. 418, 58 P. 941; 59 P. 296; Gilbert Arnold Co. v. City of Superior, 93 Wis. 194, 67 N.W. 38; Fisk v. Thorp, 60 Neb. 713, 84 N.W. 79; Ziska v. Avey, 36 Okla. 405, 122 P. 722; Gorham v. Tanquerry, 58 Kan. 233, 48 P. 916. In Cooke v. Cooke (Utah) 67 Utah 371, 248 P......
  • Gasper v. Mazur, No. 33443
    • United States
    • Supreme Court of Nebraska
    • January 8, 1954
    ...stating a defense to the action in which the decree of foreclosure was rendered with their motion to vacate the decree. Fisk v. Thorp, 60 Neb. 713, 84 N.W. 79, 80. However appellees were required to show by proof that they were prejudiced by the decree and it was mandatory that the court sh......
  • State v. Neb. Sav. & Exch. Bank
    • United States
    • Nebraska Supreme Court
    • March 6, 1901
    ...on the motion to approve the report and upon the exceptions thereto, evidence sufficient to support the order made. Fisk v. Thorp (Neb.) 84 N. W. 79;Van Etten v. Test, 49 Neb. 725, 68 N. W. 1023. Complaint is made because the form of the report of items of debit and credit is according to r......
  • Request a trial to view additional results
11 cases
  • Bd. of Com'rs of Guadalupe County v. Dist. Court of Fourth Judicial Dist., No. 2911.
    • United States
    • New Mexico Supreme Court of New Mexico
    • January 17, 1924
    ...of the writ. See Crowell v. Kopp, 26 N. M. 146, 189 Pac. 652, where the New Mexico cases are collected. See, also, Fiske v. Thorp, 60 Neb. 713, 84 N. W. 79; 4 C. J. Appearances, § 64. [6] 6. Mr. Edward D. Tittman appeared as amicus curiæ and pointed out some constitutional and statutory pro......
  • Clawson v. Boston Acme Mines Development Co., 4541
    • United States
    • Supreme Court of Utah
    • February 11, 1928
    ...R. Fruit Co. et al., 126 Cal. 418, 58 P. 941; 59 P. 296; Gilbert Arnold Co. v. City of Superior, 93 Wis. 194, 67 N.W. 38; Fisk v. Thorp, 60 Neb. 713, 84 N.W. 79; Ziska v. Avey, 36 Okla. 405, 122 P. 722; Gorham v. Tanquerry, 58 Kan. 233, 48 P. 916. In Cooke v. Cooke (Utah) 67 Utah 371, 248 P......
  • Gasper v. Mazur, No. 33443
    • United States
    • Supreme Court of Nebraska
    • January 8, 1954
    ...stating a defense to the action in which the decree of foreclosure was rendered with their motion to vacate the decree. Fisk v. Thorp, 60 Neb. 713, 84 N.W. 79, 80. However appellees were required to show by proof that they were prejudiced by the decree and it was mandatory that the court sh......
  • State v. Neb. Sav. & Exch. Bank
    • United States
    • Nebraska Supreme Court
    • March 6, 1901
    ...on the motion to approve the report and upon the exceptions thereto, evidence sufficient to support the order made. Fisk v. Thorp (Neb.) 84 N. W. 79;Van Etten v. Test, 49 Neb. 725, 68 N. W. 1023. Complaint is made because the form of the report of items of debit and credit is according to r......
  • Request a trial to view additional results

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