Green v. Morse

• Decision Date: 05 January 1899
• Citation: 77 N.W. 925,57 Neb. 391
• Parties: GREEN v. MORSE ET AL.
• Court: Nebraska Supreme Court

57 Neb. 391

77 N.W. 925

GREEN

v.MORSE ET AL.

Supreme Court of Nebraska.

Jan. 5, 1899.

Syllabus by the Court.

1. An adjournment of court to a subsequent day in the term is merely an intermission, and neither adjourns the term nor deprives the judges of control of the proceedings.

2. Notwithstanding such an order, the court may revoke it, and reconvene before the time fixed in the order of adjournment.

3. Where the record shows an order adjourning to a future day in the term, and judicial proceedings carried on in the interval, it will be presumed, in favor of regularity, that there has been a reconvention, and an express or implied vacation of the order of adjournment.

4. The rights of litigants under such circumstances, who have been prejudiced by reliance upon the order of adjournment, present questions not involved in this case.

5. An action in forcible entry and detainer lies in favor of a purchaser at judicial sale to recover possession of the premises purchased, when the judgment debtor was in possession at the time the judgment or decree was rendered whereunder the sale was made.

6. The remedy by forcible entry and detainer and by writ of assistance in the original case are concurrent, and an injunction will not be allowed to restrain the prosecution of a case in forcible detainer merely because the district court might proceed by writ of assistance.

7. A justice of the peace or county court is not ousted of jurisdiction in a forcible entry and detainer case by the mere averment in that case or elsewhere that it involves the question of title. It has jurisdiction to proceed until the evidence discloses such fact.

8. A sheriff's or master's deed, executed after confirmation of sale, and before supersedeas of that order, and delivered after judgment of affirmance and filing of a mandate, is regular.

9. A pleading is not complete evidence, in favor of the party whose pleading it is, of the facts averred therein.

Appeal from district court, Douglas county; Scott, Judge.

Bill by one Green against Morse and others. From a decree for plaintiff, defendants appeal. Reversed.Geo. E. Pritchett, for appellants.

Wright & Thomas, for appellee.

IRVINE, C.

In this case--an appeal from an order granting a perpetual injunction--there is a motion to dismiss the appeal, based on the ground that the order appealed from was made in vacation, and is therefore void. It is said that the October term of the district court of Douglas county was adjourned October 3, 1898, until November 1, 1898, and that the decree was rendered October 4th, during the intermission. At the bar the question argued was whether, where there are seven judges in a district, concurrently holding the district court of a county, six may make an order of adjournment, which will preclude the seventh from thereafter holding court during the allotted period of the term. An inspection of the record discloses no state of affairs raising precisely that question. What does appear is that the October term was begun and held October 3d; that on that day an order, apparently regular, made “by the court,” and signed by six judges, was entered, adjourning the term until the 1st day of November. It then appears that the decree appealed from was entered October 4th by the one judge who did not sign the order of adjournment. The record does not disclose that it contains all the orders affecting the adjournment and holding of the court. There is a marked distinction between an adjournment sine die of a term of court and those intermissions which inevitably occur during a term. A court has the inherent power during the term of suspending business, as occasion may require, from one hour or one day to another. In this respect there is no difference between an adjournment from one day to the next, and adjournment to a more distant day. In either case the term continues, and while, during the intermission, the functions of the court are for some purposes suspended, still the court remains in existence, and it is still term time. The judges do not, by such an order, lose all power of control over the sessions, and may revoke the order of adjournment, and reconvene before the time first fixed. Bowen v. Stewart. 128 Ind. 507, 26 N. E. 168, and 28 N. E. 73;Wharton v. Sims, 88 Ga. 617, 15 S. E. 771;Cole Co. v. Dallmeyer, 101 Mo. 57, 13 S. W. 687. While this record discloses an apparently regular order of adjournment until November 1st, it also discloses the conduct of judicial business October 4th; and it must be presumed that there had been a reconvention of the court, and a rescission of the order of adjournment; whether by regular order vacating the former, or by action equivalent thereto, is not material. Clough v. State, 7 Neb. 320. The motion to dismiss the appeal must therefore be overruled.

In what has been said it has not been the intention...