Occidental Bldg. & Loan Ass'n of Omaha v. Adams
| Decision Date | 23 June 1914 |
| Docket Number | No. 17791.,17791. |
| Citation | 96 Neb. 454,148 N.W. 88 |
| Court | Nebraska Supreme Court |
| Parties | OCCIDENTAL BUILDING & LOAN ASS'N OF OMAHA v. ADAMS ET AL. |
The district court has jurisdiction at any time after decree is pronounced, and before it is complied with, upon motion and satisfactory evidence, to correct an error in the journal entry of the decree.
If the motion to correct the journal entry is ambiguous, and is treated by all parties and the court as a motion to review the evidence and modify the decree, it will be so considered in this court.
In an action in equity which this court must try de novo without reference to the findings and decree of the trial court if the evidence of two witnesses who testified orally before the trial court is conflicting or contradictory, and it appears from the record that the trial court might have believed one of them rather than the other, this court will consider that fact in weighing the evidence of such witnesses.
The evidence indicated in the opinion is held sufficient to support the order of the trial court refusing to modify or change the decree.
Appeal from District Court, Frontier County; Perry, Judge.
Action by the Occidental Building & Loan Association of Omaha against James W. Adams and others. Judgment for plaintiff, and defendants appeal. Affirmed.W. S. Morlan, of McCook, and J. L. White, of Curtis, for appellants.
L. H. Cheney, of Stockville, and C. S. Polk, of Lincoln, for appellee.
Upon the trial of an action to foreclose a real estate mortgage, the district court for Frontier county made findings of the amount due the plaintiff and pronounced a decree of foreclosure. About a year afterwards the defendants filed a motion which they now consider in their brief as a motion to correct the record of the judgment so pronounced so as to make the record comply with the judgment of the court. Upon the trial the court found that the journal entry of the judgment was correct, and overruled the motion, and from this order overruling the motion the defendants have appealed.
[1][2] The wording of the motion was “to correct the judgment and decree entered in the above-entitled cause on the 29th day of March, 1910, so that the journal and records of this court, when so corrected, shall state accurately the amount of the plaintiff's recovery against defendants in said case, and comply with the order and decree as at the time made.” The plaintiff construes this as a motion to modify the decree and his brief is made upon that theory. The motion was not to correct the record of the decree but to correct the decree itself, but, as it refers to the decree “entered” in the cause and specifies that the object of correcting it is that it “shall state accurately the amount of plaintiff's recovery * * * and comply with the order and decree as at the time made,” it would seem that it might have been treated simply as a motion to correct the record in accordance with the decree actually pronounced. It appears that the court took some evidence on the part of the plaintiff, and in the absence of the defendants, at chambers outside of the county where the trial was had, but this seems to have been ignored as beyond the jurisdiction of the court, and a formal trial of the motion was had in the proper county. At this trial the defendants appear to have first introduced their evidence, and in doing so attempted to show the amount that was actually due the plaintiff as the case was submitted in the original trial. This evidence was received by the court without objection, and after the defendants had rested the plaintiff introduced evidence at large showing the condition of the issues and evidence and the amount that was actually due to the plaintiff at the time of the trial. The defendants made formal objection to this evidence, or at least to some of it, but did not...
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