Merriam v. Gordon
| Decision Date | 24 November 1886 |
| Citation | 30 N.W. 410,20 Neb. 405 |
| Parties | SELDEN N. MERRIAM, PLAINTIFF IN ERROR, v. THOMAS B. GORDON, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Cass county. Heard be low before POUND, J.
Affirmed.
S. P Vanatta, for plaintiff in error.
Chapman & Polk, for defendant in error.
The original action in this cause was instituted in the district court of Cass county by defendant in error in the year 1878. The purpose of the suit was to procure the cancellation of certain tax deeds which had been executed to the lands described in the petition. Service was had by publication. A default was entered and decree rendered in accordance with the prayer of the petition.
On the 7th day of April, 1884, and within four years from the date of the decree, the defendant in the action (plaintiff in error here) filed his motion to open the judgment and decree under the provisions of section eighty-two of the civil code, and defendant in error being a non-resident, he served notice on the attorney of record for defendant in error. At the same time he filed an answer to the petition.
At the next term of the district court defendant in error moved to quash the service of notice to open the decree, and assigned for ground of the motion the fact that service had been made on the attorney and not upon himself. This motion was sustained by the district court, but the decision was reversed by this court. Merriam v. Gordon, 17 Neb. 325, 22 N.W. 563. And the cause was remanded. Upon its return to the district court it was found that, following the opinion, the mandate directed the district court to "reinstate the cause and try the issues presented by the answer." This decision was made on the 11th day of March, 1885. On the 8th day of October, 1885, a motion was made in this court to change or correct the mandate so that it might direct the district court to proceed with the cause in accordance with law, omitting the specific instruction to reinstate the cause and try the issues presented by the answer. This motion was, of course, sustained and the correction made. The writer hereof, in writing that opinion, without proper reflection, made use of the language referred to, and the mistake was not noticed by the other members of the court until attention was called to it. It is very clear that the fullest extent to which the court could rightfully go was a simple reversal of the judgment of the district court, with directions to proceed with the cause.
Upon the receipt of the corrected mandate the district court very properly considered that the...
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