Hoagland v. Way
| fullCitation | Hoagland v. Way, 35 Neb. 387, 53 N.W. 207 (Neb. 1892) |
| Decision Date | 11 October 1892 |
| Citation | 53 N.W. 207,35 Neb. 387 |
| Parties | GEORGE A. HOAGLAND v. GEORGE A. WAY ET AL |
| Court | Nebraska Supreme Court |
ERROR to the district court for Franklin county. Tried below before GASLIN, J.
AFFIRMED.
Switzler & McIntosh, and H. Whitmore, for plaintiff in error:
The trial court was without authority to change the decree at a subsequent term by petition filed after stay of execution had been entered. (Miller v. Hyers, 11 Neb. 474; Sullivan v. Clark, 12 Id., 578; Banks v. Hitchcock 20 Id., 315.)
E. A Fletcher, and M. A. Hartigan, contra.
The facts are undisputed, and briefly stated are these: W. B Mendenhall, one of the defendants in error, brought his action in the district court of Franklin county against George A. Way and Lydia J. Way, to foreclose a mortgage executed by them, and covering the south half of the southeast quarter of section 25, in township 2 north, range 15 west; also lots 9 and 10 in block 1 of the Academy addition to the village of Franklin. To the suit, plaintiff in error, George A. Hoagland, and the Security State Bank, N. A. Smith, and Franklin County Lumber Company were made defendants. The Security State Bank filed an answer and cross-petition praying the foreclosure of a mortgage upon the above described real estate, executed by the the Ways. George A. Hoagland also filed an answer and cross-petition asking the foreclosure of a mortgage given to him by the Ways upon said eighty-acre tract. The cause was submitted to the court on the 28th day of January, 1890, upon the pleadings and evidence; and on the same day the court entered a decree of foreclosure, which gave Mendenhall a prior lien for $ 653.08, the Security State Bank a second lien for $ 159.73, and Hoagland a third lien for $ 824.60. By the decree the lots, as well as the eighty-acre tract, were ordered to be sold and the proceeds of sale directed to be brought into court and applied to the payment of the liens in the order of their priority.
On the 10th day of February, 1890, the Ways filed with the clerk of the court a written request for a stay of the order of sale. On May 9, following, the Ways filed a petition in the district court setting up that the decree, as prepared and enrolled, did not conform to the pleadings, in that it gave Hoagland a lien upon said lots 8 and 9, which constituted the homestead of the Ways, although the lots were not included in his mortgage, nor were they described in his cross-petition. That the decree as signed and enrolled was drafted, prepared, and submitted by the counsel for Mendenhall and the Security State Bank, without the same having been submitted for amendment or inspection to the counsel of the Ways, and that it was signed by the court without the knowledge of its conditions, contents, operations, and effect, and praying that said decree be corrected and modified so as to confirm to the pleadings and proofs. To this petition all the parties in interest appeared and answered. The cause came on for hearing at the May term of court on the 24th day of June, 1890, and the court found that the decree was incorrect, and the same was modified and corrected to conform to the pleadings. By the modified decree Hoagland was not given a lien upon said lots 9 and 10. This is assigned for error.
Ample power is conferred upon a district court to correct or modify a judgment, at a term subsequent to that at which it was rendered, for errors or mistake of the clerk, or for any irregularity in procuring it to be entered, so as to make the record correspond to the judgment actually pronounced by the court, and to conform to the pleadings in the case. (Code, secs. 602, 603, 604.) It is undisputed that Hoagland's mortgage did not cover the lots above mentioned, yet by mistake, in drawing the original decree, he was given a lien upon these lots, and they were ordered to be sold and the proceeds applied in satisfaction of the same. A bare inspection of the original pleadings is sufficient to show that such mistake occurred in preparing the decree, as Hoagland in his cross-petition did not claim a lien upon said lots. Under the statute the district court had jurisdiction to correct or modify the decree at a term of court subsequent to that at which it was entered. (Garrison v People, 6 Neb. 274; Wilkins v. Wilkins, 26...
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