Hoeppner v. Bruckman
| Decision Date | 02 July 1935 |
| Docket Number | 29331. |
| Citation | 261 N.W. 572,129 Neb. 390 |
| Parties | HOEPPNER v. BRUCKMAN ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. " A district court has power to vacate or modify its judgments or orders after the term at which they were made only for the reasons stated and within the time limited in chapter 20, art. 20, Comp. St. 1929 [section 20-2001 et seq.]." State v. Security State Bank, 125 Neb 516, 251 N.W. 97.
2. Where an application for a modification of a decree on the ground of fraud in its procurement fails to set forth that the facts constituting the alleged fraud were not discovered within two years after the trial, and fail to show any reason for extending the two years allowed by statute for modifying judgments procured by fraud, equity is powerless to relieve.
3. When it affirmatively appears from the evidence at a hearing on an application to modify a decree alleged to have been procured by fraud, after the term at which it was entered has been adjourned, that the defense alleged in the application cannot be sustained, the application should be denied.
Appeal from District Court, Adams County; Munday, Judge.
Action by Ernest Hoeppner against Charles E. Bruckman and others impleaded with James F. Crowley, trustee in bankruptcy for the firm of Hoeppner & Uerling, a copartnership (substituted for F. L. Youngblood), who filed a cross-petition, and wherein W. M. Whelan, as successor trustee, filed petition. From a decree modifying a decree of foreclosure and changing the priority of liens therein adjudicated, James F. Crowley, trustee in bankruptcy, appeals.
Decree modifying decree of foreclosure reversed, and application for modification dismissed.
R. O. Canaday and R. S. Hewitt, both of Hastings, for appellant.
W. M. Whelan and Edmund P. Nuss, both of Hastings, for appellees.
Heard before GOSS, C. J., ROSE, EBERLY, DAY, and CARTER, JJ., and MESSMORE and REDICK, District Judges.
This is an appeal from an order of the district court for Adams county confirming a sale of real estate in a foreclosure action in which order the court modified the decree of foreclosure and changed the priority of the liens therein adjudicated.
The record shows that the foreclosure action was commenced by Ernest Hoeppner on September 16, 1929, on a real estate mortgage dated December 12, 1921. One Youngblood filed an answer and crosspetition on the same day praying for the foreclosure of a tax sale certificate covering the lands included in the mortgage. On February 24, 1930, a decree was entered foreclosing both liens and fixing the tax lien as a first lien and the mortgage lien as a second lien. An order of sale was issued on June 14, 1933, and the premises were subsequently sold. On July 25, 1933, W. M. Whelan, as successor trustee for the holders of the bonds secured by the mortgage, filed his verified petition in the same action praying for an order confirming the sale and for a further order decreeing the mortgage lien to be a first lien instead of a second as adjudicated in the decree of foreclosure dated February 24, 1930. The petition filed alleged in substance that Youngblood had purchased and held the tax sale certificate as trustee for Hoeppner & Uerling, the original trustee of the holders of the bonds secured by the mortgage; that Hoeppner & Uerling were obligated by their contract of sale of the bonds to protect bondholders by paying the taxes due on said lands; that the purchase of the tax lien by Hoeppner & Uerling was a violation of their duty to and a fraud upon bondholders; and that the tax lien should therefore be subsequent to the rights of bondholders.
James F. Crowley, trustee in bankruptcy of the firm of Hoeppner & Uerling, filed an answer alleging that the decree of foreclosure of the tax lien had been assigned to him; that the same was a first lien, and that the trial court was without jurisdiction for the reason that the decree was granted under date of February 24, 1930, that the term of court at which it was entered had expired, and that the petition did not allege facts entitling the trustee for bondholders any relief. Upon a trial of the case on the issues thus framed, the trial court held the mortgage lien to be superior to that of the tax lien. The trustee in bankruptcy of Hoeppner & Uerling thereupon appealed to this court.
It will be noted that the decree of foreclosure was entered on February 24, 1930, and the application for modification was filed on July 25, 1933, three years and five months later.
Fraud practiced by the successful party in obtaining the judgment or order is made a ground for modification by our statute. Comp. St. 1929, § 20-2001. In order to obtain a modification on this ground, however, proceedings to modify...
To continue reading
Request your trial