Linton v. Heye

• Decision Date: 18 June 1903
• Docket Number: 12,937
• Citation: 95 N.W. 1040,69 Neb. 450
• Parties: PHOEBE R. E. E. LINTON ET AL. v. FRED HEYE ET AL. [*]
• Court: Nebraska Supreme Court

95 N.W. 1040

69 Neb. 450

PHOEBE R. E. E. LINTON ET AL. v. FRED HEYE ET AL. ^[*]

No. 12,937

Supreme Court of Nebraska

June 18, 1903

ERROR to the district court for Otoe county: PAUL JESSEN, DISTRICT JUDGE. Affirmed.

AFFIRMED.

John O Yeiser, for plaintiffs in error.

John C Watson and John V. Morgan, contra.

ALBERT C. BARNES and GLANVILLE, CC., concur.

OPINION

ALBERT, C.

This is an action to quiet the title to several tracts of land, each plaintiff asserting title to a separate tract. The title of each is traceable to separate conveyances from one Finlay, as attorney in fact for the defendants. Those of the plaintiffs who claim immediately under such conveyances had been in the open, notorious, exclusive and adverse possession of their respective tracts, claiming title under such conveyances for more than ten years before the commencement of this action; the possession of those claiming by virtue of mesne conveyances, coupled with that of their mesne grantors was for a like period and character and under a like claim of title. The title of each, therefore, as disclosed by the petition, is based on a conveyance from the said Finlay, as attorney in fact for the defendants, and upon adverse possession. Service on the defendants was had by publication. They appeared specially and objected to the jurisdiction of the court over their persons, on the grounds that the affidavit for service by publication and the notice, published in pursuance thereof, were defective in certain particulars, and that such notice was not published for the period required by law. The objections were overruled, and the defendants answered.

In their answer the defendants review the objections to the jurisdiction of the court, and admit the possession of the plaintiffs and their mesne grantors to have been as alleged in the petition. Further answering the defendants allege, in substance:

(1.) That at the time of the said conveyances by the said Finlay, as attorney in fact, the title to the said lands was in the defendant Phoebe R. E. E. Linton for life, remainder over to the issue, naming them, of her marriage, with her codefendant, who had no interest whatsoever in the land.

(2.) That the power of attorney, by virtue of which the said Finlay assumed to act in making said conveyances, was wholly void and of no effect, for the reason that it was not executed, acknowledged and stamped as required by the laws of England when it was made.

(3.) That adverse possession for more than ten years "does not constitute an equitable title, or afford authority or reason for a court of equity to extinguish a legal title or the title of the defendants"; that the statute of limitations of this state, as regards actions for the recovery of real estate, as construed by this court, is unconstitutional in that, as thus construed, it permits a person to be deprived of his property without due process of law. The prayer for relief is, that the plaintiffs' petition be dismissed, that the said conveyances from Finlay, as attorney in fact for the defendants, be adjudged null and void, and, that all claims of the plaintiffs, in and to the said lands be forever extinguished, and for such other relief as may be equitable. The defendants, afterward, presented what is denominated in the record as a cross-bill, asking that the issue of this marriage be brought in as parties to the suit, and that they be required to set up their interest in the lands in controversy. Leave to file a cross-bill was denied by the court. The reply of the plaintiffs is a general denial. A trial to the court resulted in a finding and decree for the plaintiffs. The defendants prosecute error.

It is first urged that the court had no jurisdiction over the defendants. The general rule, settled by a long line of authorities, is, that if a defendant intends to rely on a want of jurisdiction over his person, he must appear, if at all, for the sole purpose of objecting to the jurisdiction of the court. If he appear for another purpose, such appearance is general, and a waiver of all defects in the original process, and an acknowledgment of the complete jurisdiction of the court in the action. Bankers Life Ins. Co. v. Robbins, 59 Neb. 170, 80 N.W. 484; Omaha Loan & Trust Co. v. Knight, 50 Neb. 342, 69 N.W. 933; Leake v. Gallogly, 34 Neb. 857, 52 N.W. 824; South Omaha Nat. Bank v. Farmers & Merchants Nat. Bank, 45 Neb. 29, 63 N.W. 128; Dreyfus v. Moline, Milburn & Stoddard Co., 43 Neb. 233, 61 N.W. 599; Hurlburt v. Palmer, 39 Neb. 158, 173, 57 N.W. 1019. An exception to this rule is, that, where the lack of jurisdiction does not appear on the face of the record, the defendant may unite a plea to the jurisdiction with his other defenses to the action, without waiving his rights to insist on the lack of jurisdiction of the court. Hurlburt v. Palmer, supra. But, we think, such exception must be limited to cases where the plea to the jurisdiction is joined only with such defenses as go to defeat a recovery by the plaintiff, and should not be extended to cases where, as in this case, such plea is joined with a cross-petition, or counter-claim, which necessitates a trial on the merits of the issues tendered by the petition. Such pleading, though denominated an answer, contains all the essential elements of a petition or complaint, and might be made the basis of an independent action and decree against the plaintiffs. It puts it beyond the lawful power of the court to dispose of the case, by a finding on the issues tendered by the plea to the jurisdiction, and compels an adjudication on the merits. The defendants, having thus compelled an adjudication on the merits, can not now be heard to question the authority of the court whose jurisdiction they thus invoked.

Another complaint of the defendants is based on the refusal of the court to require their children to be brought in as parties to the action. We are unable to see how the ruling of the court in this behalf was prejudicial to the defendants. The relief sought by the plaintiff was an adjudication, quieting their title as against the claims of the defendants. That there might be other parties having, or claiming to have, some interest in the premises, would not strengthen the defense, nor assist the court, in the slightest degree, in a just determination of the respective rights of the parties before it. So far as the parties not before the court are concerned, they are not affected by the decree.

A considerable portion of the defendants' brief is devoted to the question of title by adverse possession. The facts upon...