Hassett v. Durbin
| Decision Date | 09 March 1937 |
| Docket Number | 29893. |
| Citation | 271 N.W. 867,132 Neb. 315 |
| Parties | HASSETT v. DURBIN ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. If it appears that no jurisdiction was acquired over a defendant in the manner required by law, a judgment rendered against him is void.
2. A void judgment is in reality no judgment at all. It does not bind the person against whom it is rendered. It may be impeached in any action, direct or collateral.
Appeal from District Court, Chase County; Eldred, Judge.
Suit by George W. Hassett against James D. Durbin and others impleaded with Fred A. Buchfinck. From an adverse decree defendant Buchfinck appeals.
Reversed with directions.
Meeker & Curtis, of Imperial, for appellant.
Sterling F. Mutz, of Lincoln, and Clyde Anderson, of Imperial, for appellee.
Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.
This is a proceeding upon a motion to cancel a sheriff's deed and set aside the decree of foreclosure, sale, and confirmation, for the reason that service by publication was made upon the owner of the equity of redemption when he was a resident at the time of Ord, Nebraska. From a decree denying such motion, an appeal was taken to this court.
In December, 1932, a petition for the foreclosure of a mortgage of $4,000 was filed by the plaintiff, George W. Hassett. Among the defendants named therein were Fred A. Buchfinck and his wife, Freda K. Buchfinck, and paragraph eight of the petition alleges that they claim a right, title, interest, or estate in said property, but that it is junior and inferior to the plaintiff's mortgage. The praecipe directed that a summons be issued for four of the defendants to be served in Chase county, Nebraska, but no service was made on the Buchfincks except by a newspaper publication, beginning December 15, 1932, and showing that answer day was January 30, 1933. On February 20, 1934, the decree of foreclosure was entered, and a return to the order of sale was made on April 11, 1934, and sheriff's deed was issued to the plaintiff.
On February 16, 1935, a motion was filed by Fred A. Buchfinck, asking that the decree of foreclosure, the sheriff's sale, and the order of confirmation be set aside and the sheriff's deed be canceled as void, for the reason that the defendant was not served with summons, and that at the time the notice by publication was given he was a resident of Ord, Nebraska, all of which was set out more fully in the affidavit attached to said motion, and a copy of said notice was served upon the plaintiff, George W. Hassett, who filed a demurrer challenging the sufficiency of the motion, which demurrer was overruled. A second demurrer was filed on November 18, 1935, setting out defects in the application to set aside the decree, and the motion to strike this demurrer was overruled, and an amended answer was thereupon filed by the plaintiff, alleging that no notice of the application to set aside said decree was served upon the other defendants in the case; that the motion does not state facts justifying a court of equity in setting aside the decree, in that it is not set out that the said Buchfinck has any defense to the action, or is ready and able to redeem the property from the mortgage, nor does it show that the real estate is of sufficient value to pay the mortgage and leave any equity for the said Buchfinck. It was further set out in the amended answer that the plaintiff served the said Buchfinck by publication believing in good faith that he was a nonresident of Nebraska, for letters had been addressed to him in Colorado which had not been returned, and setting up other defenses to said motion.
For the purposes of this decision, this court will consider that the only issue in the case is whether the decree, sale, and sheriff's deed, based upon service by publication upon the holder of the record title, are void if it appears that he was a resident of the state at the time.
In the trial of the case oral evidence was introduced by said Buchfinck showing that he moved his family from Holyoke, Colorado, to Ord, Nebraska, on August 12, 1932, renting an apartment there into which he moved his furniture and at once bought out a restaurant in Ord, and as soon as he had painted and cleaned it up he engaged in the restaurant business at Ord, Nebraska, and was engaged in the same business at the time of this trial; that when he moved to Ord it was with the intention of establishing his residence there. That he purchased the south half of section 28-6-41, Chase county, in the fall of 1932, and recorded his quitclaim deed on October 14, 1932, which deed appears to be in the form of a special warranty deed, warranting against all claims and demands of the grantors therein.
The assignments of error of the trial court, in overruling the motion to vacate and set aside the decree, sale, and deed, are on the ground that the judgment is contrary to the law and contrary to the evidence.
Every resident of Nebraska is entitled to notice before being divested of his property, and service by publication may only be had on defendants, and the court can acquire jurisdiction of a defendant only as provided by statute. Herman v. Barth, 85 Neb. 722, 124 N.W. 135; German Nat. Bank v. Kautter, 55 Neb. 103, 75 N.W. 566, 70 Am.St.Rep. 371; Wagner v. Lincoln County, 80 Neb. 473, 114 N.W. 574; Scott v. McNeal, 154 U.S. 34, 14 S.Ct. 1108, 38 L.Ed. 896.
Proceedings taken in courts of general jurisdiction are presumed to be regular and in conformity with law, but when it is made to appear that no jurisdiction was acquired over the defendant, then the judgment rendered is void, and its invalidity may be shown in any action in which it may be called in question. Chicago, B. & Q. R. Co. v. Hitchcock County, 60 Neb. 722, 84 N.W. 97; Topliff v. Richardson, 76 Neb. 114, 107 N.W. 114.
Even though the decree recites that due and legal service by publication has been made,...
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