Gasper v. Mazur, 33443

• Decision Date: 08 January 1954
• Docket Number: No. 33443,33443
• Citation: 62 N.W.2d 117,157 Neb. 857
• Parties: GASPER v. MAZUR et al.
• Court: Nebraska Supreme Court

Page 117

62 N.W.2d 117

157 Neb. 857

GASPER v. MAZUR et al.

No. 33443.

Supreme Court of Nebraska.

Jan. 8, 1954.

Syllabus by the Court.

1. A petition for the foreclosure of a real estate mortgage is required to state whether any proceedings have been had for the recovery of the debt secured thereby.

2. The absence of the required allegation in a petition prevents it from stating a cause of action and is fatal to a judgment rendered because of the petition if the defect is taken advantage of by a party prejudiced thereby an appeal from the judgment.

3. The sufficiency of a petition to state a cause of action is not the test of jurisdiction of a court or of the validity of a judgment rendered because of the petition.

4. If a court has jurisdiction of the parties and the subject matter of the action, a judgment rendered is not void even though the court was in error in holding that a cause of action was properly stated.

5. If the allegations of a petition are sufficient to inform the defendant the relief sought by the plaintiff, the court having power to grant it in a proper action, jurisdiction exists.

6. A prerequisite to the vacation of a judgment for irregularity in obtaining it is that the court find and adjudge that there is a valid defense to the action in which the judgment was rendered.

7. The exercise of an option given a holder of a mortgage to accelerate the maturity of the indebtedness secured and to have foreclosure of the mortgage in the event of default of the mortgagor in the performance of an obligation required of him is absolute, if a default exists, and the effect thereof cannot be defeated by the mortgagor without the concurrence of the holder of the mortgage.

8. Fraud as a reason for vacation of a judgment after the term at which it was rendered may only be taken advantage of by an action as provided by section 25-2002, R.R.S.1943.

August Ross, Omaha, for appellant.

George Evens, Omaha, for appellees.

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

BOSLAUGH, Justice.

This appeal contests the validity of an order of the district court setting aside a decree of foreclosure of a real estate mortgage and all proceedings and acts subsequent to and dependent upon it.

The basis of the action of the trial court was a pleading of appellees after adjournment of the term of court at which the decree was rendered and entered, referred to and treated as a motion, by which it was claimed there was an irregularity in obtaining the decree of foreclosure, and that appellant had practiced fraud upon the court at the time of and in procuring the entry of the decree.

The district court had acquired and had jurisdiction of the subject matter of the action and over the person of each of the appellees at the time of the rendition of the decree of foreclosure. There is no claim of defect in the jurisdiction of the court. The irregularity relied upon by appellees, as stated by them, 'consisted of the failure of the plaintiff herein (appellant) to allege (in his petition) as provided by law that no action or proceeding at law had been had to recover the debt or any part thereof.' A petition for the foreclosure of a real estate mortgage is required to state 'whether any proceedings have been had at law for the recovery of the debt secured thereby'. Section 25-2142, R.R.S.1943. The absence of the required allegation in such a petition prevents it from stating a cause of action and is fatal to a decree of foreclosure rendered on such a petition if the defect is taken advantage of by a party prejudiced thereby by timely direct attack on the pleading. Jones v. Vennerberg, 133 Neb. 143, 274 N.W. 494. The petition of appellant in this case did not state 'whether any proceedings have been had at law for the recovery of the debt secured thereby.' It was in other respects sufficient. The appellees did not challenge the sufficiency of the petition before entry of the decree. They were served with process of the character and in the manner provided by law. They made no appearance in the case until after the confirmation of the sale of the property involved by authority of the decree of foreclosure and the conveyance of the property to the purchaser on August 17, 1951, by deed of the sheriff.

The first attempt of appellees to secure a vacation of the decree of foreclosure rendered and entered on June 11, 1951, was futile. Gasper v. Mazur, 155 Neb. 856, 54 N.W.2d 66. This attack on the decree of foreclosure and the proceedings and acts subsequent to it was originated by a pleading filed in the case on January 23, 1953. It sought the exercise of the statutory right given the district court to vacate its judgments or orders after the term at which they were made. Section 25-2001, R.R.S.1943. This eventuated in this appeal. The sufficiency of the petition to state a cause of action is not the test of jurisdiction of the court or the validity of a judgment rendered because of the petition. In Wistrom v. Forsling, 144 Neb. 638, 14 N.W.2d 217, this court said: 'Where a court has jurisdiction of the parties and the subject matter of the action, a judgment rendered is not void and subject to collateral attack, even though the court was in error in holding that a cause of action was properly stated. * * * There is no connection between jurisdiction and the sufficiency of the allegations of a petition to state a cause of action. * * * Where the allegations of a petition are sufficient to inform the defendant what relief the plaintiff demands, the court having the power to grant it in a proper action, jurisdiction exists.'

The district court found and held that the petition did state a cause of action, and it respected and enforced the cause of action by the decree of...