Glissmann v. Happy Hollow Club
| Decision Date | 19 February 1937 |
| Docket Number | 29870. |
| Citation | 271 N.W. 431,132 Neb. 223 |
| Parties | GLISSMANN v. HAPPY HOLLOW CLUB ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A judgment becomes dormant and ceases to be a lien on real estate of the judgment debtor in five years from the date thereof, unless an execution is sued out on such judgment within such period.
2. When a judgment becomes dormant, it loses its priority and will be superseded by the lien of subsequent judgments in full original life or which have been duly revived.
3. A judgment revived is a lien upon the real estate of the judgment debtor from the date of the order of revivor.
Appeal from District Court, Douglas County; Dineen, Judge.
Suit by Tena E. Glissmann against the Happy Hollow Club, George Boland, and another. From a decree finding that defendant Boland had a deed prior to that of plaintiff, plaintiff appeals.
Affirmed.
S. L Winters, of Omaha, for appellant.
Frank H. Woodland, Votava, McGroarty & Sklenicka, and George Boland, all of Omaha, for appellees.
Heard before GOSS, C. J., EBERLY, DAY, PAINE, and CARTER, JJ., and ELDRED, and CHASE, District Judges.
This is a suit in equity brought for the purpose of determining the priority of two judgment liens against the interest of Henry C. Glissmann in certain real estate sold to the Happy Hollow Club on contract. From a decree finding that the defendant George Boland had a lien prior to that of the plaintiff plaintiff appeals.
Other phases of this case have been before this court on two previous occasions. Bauermeister v. McDonald, 124 Neb. 142, 247 N.W. 424; Glissmann v. McDonald, 128 Neb. 693, 260 N.W. 182.
The record shows that Hans C. Glissmann was the owner of certain lands near Omaha which he sold to the Happy Hollow Club by contract on June 22, 1922. Hans C. Glissmann died on June 15, 1928, at which time a considerable sum remained unpaid on the contract. By his will his son, Henry C. Glissmann, received an undivided one-eighth interest in the lands, subject to the contract with the Happy Hollow Club.
On March 8, 1927, the Bank of Benson procured a judgment against Henry C. Glissmann and Tena E. Glissmann, his wife, in the amount of $3,842.06. The Bank of Benson subsequently assigned this judgment to the defendant George Boland. The record conclusively establishes that this judgment has been kept alive by a series of executions issued and levies made thereon over a period of years.
The record further shows that on December 6, 1922, one H. F. Davis obtained a judgment against Henry C. Glissmann in the district court for Douglas county in the amount of $4,070.67, and the mandate of the supreme court affirming said judgment was filed on May 21, 1926. This judgment was assigned to Chris H. Kuehl on July 15, 1927, and the assignment filed in the case on March 24, 1933. On October 19, 1928, this judgment was assigned by Chris H. Kuehl to Tena E. Glissmann and the assignment filed in the case on November 29, 1932. No execution was ever issued upon this judgment and it is conceded that it became dormant and was not revived until September 27, 1935.
The interest of Henry C. Glissmann in the real estate involved in this action vested on June 15, 1928, the date of the death of his father. The judgments in question could become a lien thereon for the first time on that date. Assuming that both judgments were liens of equal priority on that date, as contended by plaintiff, the question is whether defendant Boland's lien became superior to that of Tena E. Glissmann when the judgment owned by her became dormant.
A noted text-writer states the rule as follows: " In those jurisdictions where a judgment, in order that its lien may continue, must be periodically revived, the lien of a judgment not revived within the statutory time will be superseded by the lien of younger judgments in full original life or which have been duly revived." 1 Black, Judgments (2d Ed.) § 458.
Another text-writer states the rule in this language: ...
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