Godfrey v. Cunningham

Citation109 N.W. 765,77 Neb. 462
PartiesGODFREY v. CUNNINGHAM.
Decision Date10 November 1906
CourtSupreme Court of Nebraska
OPINION TEXT STARTS HERE
Syllabus by the Court.

After the filing of a stipulation signed by the attorneys of both parties, agreeing that an order of sale in a partition case, and all proceedings thereunder be vacated, a confirmation of such sale without a consideration and disposition of the stipulation is an irregularity within the meaning of section 1612, Cobbey's Ann. St. 1903.

In a motion to set aside the confirmation of a judicial sale for irregularities under the provisions of section 1612, Cobbey's Ann. St. 1903, it is sufficient to allege the existence of irregularities which would have been sufficient to avoid the sale had they been considered at the time of confirmation.

“An interlocutory order or ruling may be reversed and vacated at a subsequent term by the same court, without compliance with the provisions of section 602 et seq., of the Code of Civil Procedure, relating to the vacation and modification of judgments and final orders at a term subsequent to that in which rendered.” Huffman v. Rhodes (Neb.) 100 N. W. 159.

Unless an abuse of discretion of the trial court in setting aside an interlocutory order is shown, an appellate court will not interfere therewith.

A motion to set aside the confirmation of a judicial sale is not waived by later filing a motion to set aside interlocutory orders, and no prejudicial error results in considering both motions at the same time.

Commissioner's Opinion. Department No. 1. Appeal from District Court, Douglas County; A. C. Troup, Judge.

Action by Dennis Godfrey against Anna Cunningham. Judgment for defendant, and plaintiff appeals. Affirmed.Will H. Thompson, for appellant.

James H. Van Dusen, for appellee.

EPPERSON, C.

This is an action for the partition of real estate. In 1901 the district court of Douglas county confirmed the shares of the parties, and appointed referees to make partition. On the same day there was filed in the case a stipulation signed by the attorneys of the respective parties in which it was agreed that the decree should not be carried out except by written consent of counsel. On June 4, 1904, the referees reported to the court that they could not make a fair and equitable partition of the premises, and recommended sale. This report was afterwards confirmed, and the referees directed to sell the property as required by law. On the date of sale, there was filed a stipulation, signed the previous day by the only counsel appearing of record, in which it was agreed that the order authorizing the sale of the property be vacated, and all proceedings thereunder be declared void, and that the proposed sale be discontinued. The stipulation recites that it is made by reason of the former stipulation and because of the fact that the parties had not agreed to proceed with the case. Ignoring this stipulation, the referees sold the land. Plaintiff was the purchaser at the sale. Two days subsequent to an order of the court confirming the sale, defendant filed a motion to set aside the order of confirmation, alleging as her reasons the existence of the above facts relative to the stipulations. At the next term of court, defendant filed another motion in which she asked that the order confirming the report of June 4, 1904, and an order of July 27, 1904, modifying the same, be vacated, and the sale set aside. From the judgment of the court, sustaining defendant's motions, plaintiff appeals.

It is not necessary to consider the legal effect of the first stipulation. Both parties complied with its terms for three years. Finally, referees took steps toward making a sale of the property. Then it was that the second stipulation was filed. There is no contention that it was made through fraud. It was on file when the court confirmed the sale. The court's attention was not called to it. No attempt was made to have it annulled. If unjust, it might have been set aside upon proper showing with notice. Keens v. Robertson, 46 Neb. 837, 65 N. W. 897. Plaintiff's present counsel should not have moved for confirmation with that stipulation on file without calling it to the court's attention. In our opinion, the confirmation of the sale without consideration of the stipulation was an irregularity justifying the court in setting aside the order of confirmation under section 1612, Cobbey's Ann. St. 1903.

2. Plaintiff argues that before defendant can obtain relief she must allege and prove that she was prejudiced by the irregular proceedings. Many cases are cited by appellant to the effect that the...

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