Gillespie v. Switzer

• Decision Date: 06 February 1895
• Citation: 62 N.W. 228,43 Neb. 772
• Parties: GILLESPIE v. SWITZER.
• Court: Nebraska Supreme Court

43 Neb. 772

62 N.W. 228

GILLESPIE

v.SWITZER.

Supreme Court of Nebraska.

Feb. 6, 1895.

Syllabus by the Court.

A sale on an execution issued upon a dormant judgment is merely voidable, and neither such sale nor the title acquired thereunder can be assailed in a purely collateral proceeding.

Error to district court, Lancaster county; Hall, Judge.

Ejectment by John W. Gillespie against Diedrich Switzer. Judgment for defendant, and plaintiff brings error. Affirmed.Davis & Hibner, for plaintiff in error.

Harwood, Ames & Pettis, for defendant in error.

RYAN, C.

This action was brought in the district court of Lancaster county to recover possession of a certain described tract of land, together with rents which had accrued during its alleged detention. A jury was waived, and, upon a trial had, there was a judgment in favor of the defendant. Both parties claimed title through George H. Baker, who in 1873 owned the real property with reference to which this suit was begun. On September 13th, of the year last named, the property was mortgaged by Baker to Sloss & Smith. On the 20th day of April, following, Baker conveyed the aforesaid property to Luther L. Pease. Sloss & Smith began a foreclosure proceeding under their mortgage in September of 1874, and a final decree was entered on December 1st, thereafter. By mesne conveyance, plaintiff herein was vested with such interest as had been held by Pease, and, on the claim that he was the owner of the property, he sought to recover it from the defendant, who, in his own behalf, insisted that he held the superior title. The questions urged arose out of the fact that although Sloss & Smith obtained their decree of foreclosure on December 1, 1874, there was issued no order of sale for its enforcement until January 19, 1880,--a period of over five years. As the title of defendant was derived through proceedings under said order of sale, the validity of these proceedings is questioned, because they were had under a decree for the enforcement of which no process had issued for a continuous period of more than five years previous to the issue of the aforesaid order of sale. An ordinary judgment for the recovery of money only, it is conceded by the defendant, would become dormant under the circumstances stated, by virtue of the provisions of section 482 of the Code of Civil Procedure; but it is urged that there exists a clear distinction in this respect between a decree and a judgment of the character indicated. The effect of section 2 of the Code of Civil Procedure, it is asserted by plaintiff, was to abrogate all distinctions between actions at law and suits in equity. Possibly, this may be correct; and it is possible that in section 1105, Id., the provision that the words “decree should mean judgment” has a direct bearing upon this proposition. It is not necessary, however, to determine this question; for if it should be conceded, for the sake of the argument, that the position of the defendant is correct, there would then arise the question whether a sale under an execution issued upon a dormant judgment is absolutely void or merely voidable. Plaintiff insists that such a sale would be void, and, therefore, that it might, as in this case, be collaterally attacked; while the defendant, with equal tenacity, contends that the sale would at most be but voidable, and that, therefore, no question of its validity could be tolerated in a collateral proceeding. In Hinds v. Scott, 11 Pa. St. 19, this question was discussed in the following language: “As between debtor and creditor, the land of the former is as accessible to the latter, in payment of his debt, as would be a horse or any other personal chattel; and a complaint that either species of property was applied in discharge of an unrevived judgment is entitled to...