Holmes v. Webster

• Decision Date: 03 April 1915
• Docket Number: 18018
• Citation: Holmes v. Webster, 98 Neb. 105, 152 N. W. 312 (Neb. 1915)
• Parties: EDWARD P. HOLMES, APPELLEE, v. JOSEPH R. WEBSTER ET AL., APPELLANTS
• Court: Nebraska Supreme Court

152 N.W. 312

98 Neb. 105

EDWARD P. HOLMES, APPELLEE, v. JOSEPH R. WEBSTER ET AL., APPELLANTS

No. 18018

Supreme Court of Nebraska

April 3, 1915

APPEAL from the district court for Lancaster county: P. JAMES COSGRAVE, JUDGE.Reversed and dismissed.

Judgment of the district court reversed and plaintiff's action dismissed.

H. F Rose, and C. S. Allen, for appellants.

J. A Brown, contra.

BARNESJ. LETTON and ROSE, JJ., not sitting.

OPINION

BARNES, J.

Appeal from a decree of the district court for Lancaster county in a creditor's suit to subject certain real estate to the payment of a judgment or decree of the federal court for the district of Nebraska.

The record discloses that the judgment of the federal court, which is the basis of the decree herein, was rendered on April 16, 1894.Fourteen years after the judgment was rendered in the federal court, the plaintiff in this case procured a certified transcript thereof from the clerk of that court and caused it to be filed in the office of the clerk of the district court for Lancaster county.Thereafter the plaintiff commenced proceedings in the state court to revive the judgment.The defendantJoseph R. Webster entered a special appearance objecting to the jurisdiction of the court.His objections were overruled, and he did not further appear.The state court entered an order reviving the judgment, and on the 20th day of May, 1909, Holmes filed his petition in this case, setting forth, in substance, the foregoing facts, and alleging the facts which he claimed enabled him to enforce the judgment, and further alleging that defendantJoseph R. Webster had fraudulently conveyed his property.He prayed for a decree setting aside the deeds and subjecting the real estate to sale for the purpose of paying the amount due him upon the judgment rendered by the federal court.To the petition the defendants, Joseph R. Webster and Joy L. Webster, filed separate answers challenging the validity of the judgment of the federal court, the order of revivor entered by the state court, denying fraud in the conveyance, and all of the other allegations of plaintiff's petition.A trial resulted in a finding and judgment for the plaintiff, and the defendants have appealed.

Appellants strenuously contend that the decree is not sustained by the evidence and is contrary to law.As a basis for a creditor's suit, the plaintiff must have a valid and enforceable judgment against the principal defendant, and without the existence of such a judgment his action must fail.The judgment of the federal court, which is...