In re Application of Miller
| Decision Date | 21 March 1941 |
| Docket Number | 30971 |
| Parties | IN RE APPLICATION OF MILLER. v. ROBERT L. CLARKE, APPELLANT: EMMA GLADYS CLARKE, INTERVENER, APPELLEE, LOUISA GERTRUDE CLARKE MILLER, EXECUTRIX, ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Nemaha county: VIRGIL FALLOON JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. A divorce decree awarding the wife $15 a month for the support of minor children, where there have been no proceedings to review or revise within the time provided therefor, is a final judgment and becomes a lien on the real estate of the husband in another county as soon as a transcript of the decree is filed in such other county.
2. A decree for child support, rendered in a suit for a divorce does not become dormant because of the failure to issue execution thereon for more than five years.
3. Where a wife intervenes in a partition suit to assert her lien on the husband's interest in the real estate being partitioned, it is not necessary for her to plead and prove that she had no adequate remedy at law.
4. Where the effect of an award for child support is to grant one sum for each month for the maintenance of more than one minor child during their minority, it will be construed, in the absence of a modification by the court which awarded it, to provide for the monthly payment of such sum until the youngest child attains his majority.
5. Under such a decree, the fact that one or all of such minor children became selfsupporting before attaining majority is a proper basis for an application to modify the award in the court which granted it, but it cannot be raised in a suit to foreclose the judgment lien.
Appeal from District Court, Nemaha County; Falloon, Judge.
Proceeding in the matter of the application of Louisa Gertrude Clarke Miller, executrix, and Fred Miller, executor, for license to sell realty, wherein Emma Gladys Clarke intervened to impress a lien on the interest of Robert L. Clarke in the estate of Sarah Elizabeth Clarke. From an order holding that Emma Gladys Clarke had a valid lien on the interest of Robert L. Clarke, Robert L. Clarke appeals.
Affirmed.
Sterling F. Mutz, for appellant.
Robert M. Armstrong and Munger & Rhodes, contra.
Heard before SIMMONS, C. J., ROSE, PAINE, CARTER, MESSMORE and YEAGER, JJ.
This is a suit in equity brought in the district court for Nemaha county by Emma Gladys Clarke to impress a lien upon the interest of Robert L. Clarke in the estate of Sarah Elizabeth Clarke, his mother. As a result of a partition sale, the interest of Robert L. Clarke was determined to be $ 434.86, which amount is being held until the result of this suit is determined. The trial court held that Emma Gladys Clarke had a valid lien on the fund and ordered it paid to her. From this order the defendant, Robert L. Clarke, appeals.
The record shows that on August 20, 1928, Emma Gladys Clarke obtained a divorce from Robert L. Clarke, by the terms of which he was required to pay $ 15 a month to the plaintiff for the support of their two minor children, Glen and Earl. An execution was issued on August 29, 1928, in an attempt to collect the amount then due under the decree, which was returned wholly unsatisfied. On June 26, 1934, the decree was transcribed to and filed in the office of the clerk of the district court for Nemaha county. The decree was again transcribed and filed in Nemaha county on February 3, 1939. The only payments shown to have been made on the decree are $ 30 on October 6, 1928, $ 15 on October 23, 1928, $ 8 on April 22, 1931, and $ 10 on September 30, 1934. It is alleged that the sum of $ 1,110.90 remains due and unpaid, and that this amount is a lien upon the interest of Robert L. Clarke in the estate of his mother.
Appellant contends that the decree awarding support money for the care and maintenance of the minor children can be enforced only by the tribunal which granted it. This court had adopted a contrary view. In a similar case we stated that such a decree in favor of the wife, awarding $ 15 a month during the minority of two children, where the term of court has ended and there have been no proceedings to review or revise, is a final judgment and becomes a lien upon the real estate of the husband in another county upon the filing of the transcript of the judgment in such county. Wharton v. Jackson, 107 Neb. 288, 185 N.W. 428. See Cipera v. Chmelka, 87 Neb. 482, 127 N.W. 874. See, also, Comp. St. 1929, sec. 42-319. It is fundamental that a real estate lien is ordinarily enforceable in the county where the property is located.
Appellant contends that the statute of limitations is a bar to a recovery for the support of Glen Clarke due to the fact that he reached his majority more than five years prior to the filing of the petition in intervention in this suit. The contention is also advanced that the statute of limitations begins to operate against each installment as it accrues. A decree for child support in a divorce action is not a judgment within the meaning of section 20-1515, Comp. St 1929, which provides that a judgment on which execution has not issued for five years shall become dormant and shall cease to operate as a lien on real estate, nor is it a judgment within the meaning of section 20-1420, Comp. St. 1929, which provides for the revivor of a dormant judgment. This court has held that a decree of foreclosure of a mortgage is not a judgment within the meaning of section 20-1515, Comp. St. 1929. Jenkins Land & Live Stock Co. v. Kimsey, 99 Neb. 308, 156 N.W. 499. We have also held that such section of the statute does not apply to a decree for the sale of specific real property. Herbage v. Ferree, 65 Neb. 451, 91...
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