Lippincott v. Wolski
| Decision Date | 10 January 1947 |
| Docket Number | 32119. |
| Citation | 25 N.W.2d 747,147 Neb. 930 |
| Parties | LIPPINCOTT v. WOLSKI et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A court has no jurisdiction over the subject matter, in an action brought under section 25-402, R.S.1943, which provides that an action involving separate tracts of real estate situated in different counties, may be brought in any county in which any tract, or part thereof, is situated, when the pleadings disclose that none of the defendants have or claim any interest, adverse to plaintiff, in the property situated in the county in which the action is brought.
2. Want of jurisdiction of the subject matter of the action is a defect which it is the duty of the court to notice, of its own motion, by dismissal of the action or other suitable action, at any stage of the proceedings.
Mothersead & Wright, of Scottsbluff, Hamer, Tye & Worlock, of Kearney, and Lewis F. Shull, of Scottsbluff, for appellant.
W L. Minor and Ward W. Minor, both of Kearney, for appellee.
Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ., and WILSON, District Judge.
This action was brought in the district court for Buffalo County by Virginia Lippincott as plaintiff and subsequently prosecuted by Harvey Lippincott, Jr., as substituted plaintiff and appellee herein, against his mother, Ena Lippincott, now Ena F. Lippincott Wolski, defendant and appellant herein, and others as defendants. The purpose of the action was to cancel two separate conveyances executed by the original plaintiff in favor of defendant Harvey Lippincott, one conveyance covering real estate in Buffalo County and the other conveyance covering real estate in Scotts Bluff County which conveyances plaintiff alleged were obtained by intimidation and duress; and to remove the cloud of said conveyances on plaintiff's title to the properties in both counties; and further, as added by an amended petition subsequently filed by Harvey Lippincott, Jr., as substituted plaintiff, to restrain and enjoin the defendants from claiming any interest in said properties in both counties and from interfering with plaintiff's title thereto. The petitions also prayed for general equitable relief.
The record does not disclose that trial of this action has been had on its merits, but in and during the pendency of the action the district court for Buffalo County, on plaintiff's application, issued restraining orders, temporary injunctions, and finally a permanent injunction restraining and enjoining defendant Ena Lippincott from taking possession of the properties in Scotts Bluff County and from prosecuting an action commenced by her against Harvey Lippincott, Virginia Lippincott, and Harvey Lippincott, Jr., in the district court for Scotts Bluff County, to quiet title in her to some of the Scotts Bluff County properties in question. Upon the overruling of her motion for new trial, the defendant Ena Lippincott Wolski perfected this appeal from the issuance of the permanent injunction, contending, among other things, that the district court for Buffalo County had no jurisdiction over her person or the subject matter of the action, insofar as it related to the property in Scotts Bluff County. We decide that the contention of the defendant and appellant Ena Lippincott Wolski, in this regard, must be sustained.
The following is a review of the proceedings had in this case, which we deem sufficient, but necessary, for a proper understanding and determination of the issues involved.
In view of the identical surnames of all these original parties, we will take the liberty of referring to them by their given names, as a matter of convenience.
On May 26, 1942, this action was commenced in the district court for Buffalo County, Nebraska, by Virginia, as plaintiff, against Ena, James, Philipina and Harvey, as defendants. The petition alleged that the plaintiff was the owner of certain properties in Buffalo and Scotts Bluff Counties, Nebraska, the title to which she obtained by two separate deeds dated January 20, 1940, from defendant Harvey, whom she alleges to be her husband, one conveyance covering the Scotts Bluff County property and the other the Buffalo County property. The petition also alleged, and it is undisputed, that defendant Ena obtained a divorce from Harvey in the district court for Scotts Bluff County, Nebraska, on March 11, 1941, the decree being subsequently affirmed, as to the divorce, but reversed as to the property distribution, by this court on March 27, 1942; and this divorce action was still pending at the time the petition in the case at bar was filed; that Ena and Harvey had been purportedly divorced in Nevada on February 26, 1937, and thereafter on November 4, 1937, plaintiff Virginia and Harvey were purportedly married; and, presumably because the Scotts Bluff County, Nebraska divorce to Ena invalidated her Nevada divorce and Virginia's first marriage to Harvey, Virginia and Harvey were married on March 28, 1942.
The petition further alleged that plaintiff Virginia, on March 7, 1941, reconveyed both the Buffalo and Scotts Bluff County properties involved, to Harvey, by two separate deeds covering the property in each county, and that said deeds were involuntarily executed by her and were obtained by duress, undue influence, and intimidation of Harvey and his attorneys in the Scotts Bluff County divorce action and were therefore void but constituted a cloud on plaintiff's title to the properties in both counties; and that defendant Ena claimed some interest in the real estate and defendants James and his wife Philipina claim some interest under a trust agreement, a copy of which is attached to the petition, and discloses that it is dated February 11, 1933, and covers only Scotts Bluff County property and not the Buffalo County property involved in this action. The petition prayed for cancellation of the deeds referred to and general equitable relief. Personal service as to this petition was had on defendants Philipina and Harvey and residence service upon defendant James, all in Buffalo County, and personal service on defendant Ena in Scotts Bluff County.
On October 30, 1944, Harvey, Jr., as substituted plaintiff, filed an amended petition, which adds as defendants, James W. Lippincott, Jr., Velma Lippincott Kellums, Harold W. Lippincott, C. R. Barton, clerk of district court of Scotts Bluff County, and Kent Lane; and which alleged, so far as material herein, substantially the same facts as the original petition, but in addition thereto alleged the acquisition of title to the properties in both counties by Harvey, Jr., by two separate conveyances dated September 7, 1944, from the former plaintiff Virginia and her then husband, defendant Harvey, one conveyance covering the Scotts Bluff County and the other the Buffalo County property; and the amended petition prayed also that the defendants be enjoined from interfering with, or claiming any interest in the properties involved and for general equitable relief.
Subsequently, on applications of Harvey, Jr., as substituted plaintiff, restraining orders and temporary injunctions were issued by the district court for Buffalo County in the action in the case at bar, restraining and enjoining defendant Ena from taking possession of the Scotts Bluff County land and from prosecuting an action commenced by her in the district court for Scotts Bluff County to quiet title in her to said land, against Harvey, Virginia, and Harvey, Jr., as defendants. Throughout the proceedings defendant Ena objected to the jurisdiction of the district court for Buffalo County over her person and the subject matter of the action, insofar as it involved the Scotts Bluff County property, by special appearances which were overruled, and in answers alleged that she was a resident of Scotts Bluff County and that she had and claimed no interest in the Buffalo County property.
Finally, on March 8, 1946, the district court for Buffalo County, in the case at bar, issued a permanent injunction, enjoining defendant Ena from proceeding with her action to quiet title in the district court for Scotts Bluff County; and upon the overruling of her motion for a new trial, said defendant brings this appeal.
The pertinent facts, aside from the proceedings themselves above reviewed, are undisputed, and, in their chronological order, are as follows:
On February 26, 1937, Ena was purportedly divorced from Harvey in Nevada on November 4, 1937, the original plaintiff Virginia and Harvey were purportedly married in Nevada; on January 20, 1940, Harvey conveyed all the properties in both Buffalo and Scotts Bluff Counties to Virginia, there being two deeds, each covering the properties in one county; on April 5, 1940, Ena brought suit for divorce against Harvey in Scotts Bluff County, Nebraska, and a decree of divorce was entered in said action in plaintiff's favor on March 11, 1941, which decree assigned to Ena a part only of the Scotts Bluff County land, and none of the Buffalo County land, involved in the case at bar; on appeal from this divorce decree this court, on March 27, 1942, affirmed the decree as to the divorce but reversed it as to the alimony award and the assignment of property. See Lippincott v. Lippincott, 141 Neb. 186, 3 N.W.2d 207, 140 A.L.R. 901. On retrial as to alimony the district court for Scotts Bluff County, on August 14, 1943, again assigned as alimony to plaintiff Ena a part only of the Scotts Bluff County property and none of the Buffalo County property involved in this action; and, upon appeal, this decree was affirmed by this court on March 17, 1944. See Lippincott v. Lippincott, 144 Neb. 486, 13 N.W.2d 721. During the progress of the first trial in the divorce action in ...
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