McCormick v. Paddock

• Decision Date: 01 December 1886
• Citation: 30 N.W. 602,20 Neb. 486
• Parties: MCCORMICK v. PADDOCK AND OTHERS.
• Court: Nebraska Supreme Court

20 Neb. 486

30 N.W. 602

MCCORMICK

v.PADDOCK AND OTHERS.

Supreme Court of Nebraska.

December 1, 1886.

Syllabus by the Court.

A judgment rendered against a person--and equally so of one rendered in his favor--after his death is reversible, if the fact and time of death appear on the record, or in error coram nobis. If the fact must be shown aliunde, the judgment is voidable and not void, and cannot be impeached collaterally. Jennings v. Simpson, 12 Neb. 558;S. C. 11 N. W. Rep. 880; citing Yaple v. Titus, 41 Pa. St. 195.

A court, by the service of its process, acquires jurisdiction over the person of an insane defendant, and the failure to appoint a guardian ad litem does not render the judgment either void or voidable. It is at most only erroneous, for which the appropriate remedy is by proceedings in error, and not by an original action to vacate the judgment. See McAllister v. Lancaster Co. Bank, 15 Neb. 295;S. C. 18 N. W. Rep. 57.

An affidavit for service by publication is sufficient if it states the nature of the cause of action for which publication may be made, and that service of summons cannot be made upon the defendant or defendants within the state, (Fouts v. Mann, 15 Neb. 172;S. C. 18 N. W. Rep. 64;) and it is not necessary that the statement that service of summons cannot be made upon the defendant in the state be made in the language of the statute. If the fact be made to appear by the affidavit, it is sufficient.

When service of the pendency of the action is made by publication, if the published notice is so specific as to advise the defendants of their interest sought to be affected by the proceeding, it is sufficient. See Gary v. May, 16 Ohio, 66.

Appeal from district court, Douglas county.George W. Ambrose and John M. Thurston, for appellant.

George W. Doane, Arthur C. Wakeley, T. M. Marquett, Kennedy & Gilbert, and H. J. Davis, for appellees.

REESE, J.

This action was instituted in the district court of Douglas county to quiet the title of plaintiff to certain real estate described in the petition. The defendants filed a general demurrer to the petition. The demurrer being sustained, and the cause dismissed, plaintiff appeals to this court, assigning for error the ruling of the district court in sustaining the demurrer.

The averments of the petition are, in substance, that on or before the twenty-first day of November, 1868, one George R. Smith was the owner of an undivided interest in the land in controversy, and that one Mary Ann Harrington was the owner of the remaining interest. As to what portion of the property each one owned is not material to this decision. On the last-named date Smith commenced an action in the district court for partition of the land, caused service to be made by publication, and obtained a judgment for partition. Three commissioners were appointed by the court to make the division, or, in case partition could not be made without prejudice to the owners, to report the fact to the court. The referees reported that, owing to the irregular boundaries of the land, its oblong shape, and uneven surface, partition could not be made without great prejudice. On the return of this report the property was ordered to be sold by the referees, which they did, and reported having sold the same to the plaintiff in the action for the sum of $3,729.15; that they had paid over to the plaintiff $2,331, his share of the proceeds of the sale; and that they held subject to the order of the court the sum of $1,398.15, the share of the defendant Mary Ann Harrington. The report of the referees was confirmed, the deed ordered to be made to Smith, and the money belonging to Harrington directed to be paid to the clerk, to abide the further order of the court, all of which was done. That, at the time of the commencement of the action for partition, the said Mary Ann Harrington was insane, and was confined in the State Lunatic Asylum at Utica, New York, until the time of her death, which occurred on the twenty-sixth day of January, 1869, which was prior to the rendition of the judgment for partition and appointment of referees. That on the first day of March, 1862, said Mary Ann Harrington, by her last will and testament, bequeathed the property to one J. R. Benedict, who survived her, and took title under the will. That prior to his death he bequeathed the property to his executors, named in the will executed by him, and gave them full power and authority to sell and convey the same upon such terms and conditions as to them should seem proper, and that plaintiff had purchased the property, and was now the owner thereof, to the extent of Harrington's interest. It is alleged that defendants derive their title from Smith, the plaintiff, and purchaser at the partition sale; that he acquired no title by said purchase, and that defendants have no title; that neither the said Mary Ann Harrington, the devisees, inheritors, nor plaintiff, appeared in said partition proceedings, or accepted the proceeds of the sale, and that the judgment, orders, sale, and the deed thereunder were void for want of jurisdiction.

The proceedings are attacked upon two grounds: First, that the affidavit of non-residence, and by virtue of which the publication of notice was made, and the published notice, were not in conformity with law, and conferred no jurisdiction upon the court to render its decree; and, second, that, at the time of the service of summons by publication, the said Mary Ann Harrington was insane, and at the time of the rendition of the decree she had died, and no proceedings were had to revive the action as against her legal representatives.

The principal contention in this court was upon the first of the above-named grounds. As to the second, it seems pretty clear that, if jurisdiction was obtainedby the publication of the notice, the subsequent death of the defendant would not render the further proceedings void. Jennings v. Simpson, 12 Neb. 558;S. C. 11 N. W. Rep. 880; and see cases cited by appellees. Nor would the fact of the insanity of the defendant have that effect. McAllister v. Lancaster Co. Bank, 15 Neb. 295;S. C. 18 N. W. Rep. 57.

Our attention must then be directed to the first alleged reason why we should hold the judgment for...