Glissmann v. Orchard, 32738

• Decision Date: 10 March 1950
• Docket Number: No. 32738,32738
• Citation: 152 Neb. 500,41 N.W.2d 756
• Parties: GLISSMANN et al. v. ORCHARD et al.
• Court: Nebraska Supreme Court

Page 756

41 N.W.2d 756

152 Neb. 500

GLISSMANN et al. v. ORCHARD et al.

No. 32738.

Supreme Court of Nebraska.

March 10, 1950.

Syllabus by the Court.

1. Where cases are interwoven and interdependent and the controversy involved has been considered and determined by the court in former proceedings involving one or more of the parties presently before it, the court has the right to examine its records and take judicial notice of its proceedings and judgment in the former action.

2. In a suit to foreclose an agreement, the character of which is an equitable mortgage on the real estate affected, the execution of the agreement, the breach thereof, the identity of the real estate described therein, and the amount due thereon, are material and necessary issues to be determined by the decree.

3. It is a general rule that a judgment is a new debt and that the cause of action on which it is founded is merged therein.

4. Any right, fact, or matter in issue directly adjudicated or necessarily involved in the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies whether the claim or demand, purpose, or subject matter of the two suits is the same or not.

5. If the district court attempts to render a judgment on a subject matter within its general jurisdiction but which is not properly before it, such a judgment is a nullity.

6. A judgment of personal liability must be supported by a pleading alleging it as a cause of action.

Samuel L. Winters, Omaha, Oscar Doerr, Omaha, Henry C. Glissman, pro se, for appellants.

Edmond H. Orchard, pro se, Gray & Brumbaugh, Omaha, for appellees.

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

BOSLAUGH, Justice.

Tena E. Glissmann and Henry C. Glissmann, appellants, and Edmond H. Orchard, appellee and cross-appellant, are the parties now interested in this case. Serena E. Grabow and John J. Grabow have disclaimed any interest, and by their request this appeal has been as to them finally dismissed. Harriet C. Orchard died during the pendency of this case and Edmond H. Orchard, appellee, succeeded to any rights she had in the subject matter of the controversy.

Appellants claim they gave notice of their desire to exercise the option to purchase and offered to surrender possession of the premises described in the lease and option agreement made a part of their pleadings and hereinafter referred to; that they requested appellee to advise them the amount of credits and security received by him for their benefit; that he contended that he held nothing for their benefit; that by action in court he dispossessed them of the premises; that appellee violated the terms of the agreement and failed to hold the $5,500 assigned to him as security that appellants are entitled to the benefits of the $5,500 and the $1,500 equity transferred to appellee as provided by the agreement; and they ask for an accounting of the securities transferred to appellee.

Appellee denied all claims of appellants, except he conceded and pleaded the lease and option agreement; that Serena E. Grabow transferred to appellee the properties as security as evidenced by it; that appellants were dispossessed of the premises on January 23, 1942; that appellants and Serena E. Grabow and John J. Grabow were obligated to perform the terms of the agreement; that they were liable because of the agreement for rent, taxes, insurance premiums, waste, and expenses of litigation in which appellee had been involved which had accrued during the years of 1939, 1940, 1941, and to February 12, 1942; and he asked judgment for the amount thereof with interest against them.

The district court found that appellants were entitled to recover from appellee $1,500 (without interest), the undisputed value of the equity in the five-acre tract; that the lease option and agreement was terminated by foreclosure on October 31, 1939; that Edmond H. Orchard had succeeded to all rights and liabilities of Harriet C. Orchard; that there was due from appellants to appellee $5,963.13, composed of rent, taxes, and insurance premiums accrued during the period from June 15, 1939 to February 12, 1942; that the $1,500 should be offset against said amount; and that there was a net balance due appellee from appellants of $4,463.13 and judgment was entered therefor in harmony with the findings. There was no motion for a new trial. There is no bill of exceptions. The case is here for review on the transcript.

An agreement bearing date of March 28, 1929, made by appellee and his wife, as first parties, and Serena E. Grabow and John J. Grabow, as second parties, evidenced the transfer to Edmond H. Orchard by Serena E. Grabow of $5,500 of her interest in the estate of Hans C. Glissmann, deceased, and an equity of the value of $1,500 resulting from a transaction involving a five-acre tract of land described in detail in the agreement. The agreement provided that these items were to be held by first parties as security for the performance of the obligations of the agreement by second parties and to be disposed of, in the event of their failure to purchase the premises described in the contract under an option granted by it, and the surrender by them of the possession of the premises to first parties, by their surrender and transfer of all funds held by them as security to second parties, less any part thereof applied to the satisfaction of any items designated in the agreement then due and unpaid to first parties. This instrument was a lease and option agreement made on behalf of, and for the benefit of appellants as the real parties of the second part.

Litigation involving the lease and option agreement, the subject matter thereof, and transactions relating to and induced thereby, has been frequent and long, and has been determined by this court in several cases. They were interwoven, and in many respects interdependent. Appellants and appellee have been principal adversaries therein. This is a proper case for application of the doctrine that: "* * * where cases are interwoven and interdependent and the controversy involved has already been considered and determined by the court in former proceedings involving one of the parties now before it, the court has...