Patten v. Lane

• Citation: 45 Neb. 333,63 N.W. 938
• Parties: PATTEN v. LANE ET AL.
• Decision Date: 18 June 1895
• Court: Supreme Court of Nebraska

45 Neb. 333

63 N.W. 938

PATTEN

v.LANE ET AL.

Supreme Court of Nebraska.

June 18, 1895.

Syllabus by the Court.

1. When, under our practice, the defendants to an action in rem are required to disclose their interests in the subject of the controversy, notice of a cross bill is to be regarded as a proceeding in the cause designed to assist in the prosecution thereof, and accordingly interlocutory in character.

2. In such case, a decree based upon a cross-bill, filed by a single defendant, after answer day, his codefendants having made no appearance, is irregular merely, and not void for want of jurisdiction.

3. Arnold v. Lumber Co., 55 N. W. 269, 36 Neb. 841, distinguished.

Appeal from district court, Douglas county; Irvine, Judge.

Action by Charles T. Patten against Charles H. Lane and others. From a decree for defendants, plaintiff appeals. Affirmed.McClanahan & Halligan, for appellant.

Wharton & Baird, for appellees.

POST, J.

This is an appeal from a decree of the district court for Douglas county, dismissing the petition of the plaintiff, by which he seeks to set aside a deed, executed by him to the defendant Lane, for lot 10 in block 34 in Kountz Place, in the city of Omaha; also to set aside a deed for the same property from John F. Boyd, master commissioner, to Henry F. Cady, and a deed from said Cady to Lane; also for leave to redeem said property. The material facts are as follows: On the 5th day of July, 1888, Andrew J. Eaton, a single man, and Isabelle K. Eaton, being the owners of the property above described, mortgaged the same to one Smith, to secure their notes of even date therewith, for $4,500. On the 9th day of the same month they executed a second mortgage on said premises to one Bates for $250, and on the same day they executed a third mortgage to Fred W. Gray for $1,719.44. On the 4th day of February, 1889, the Eatons conveyed the west half of said premises to William F. Chittick. On the 9th day of May, 1890, said Eatons conveyed the east half of said premises to Ursella O. Bartlett, to whom, on the day following, said Chittick conveyed the west half thereof, and who, on the 13th day of March, 1891, conveyed said lot to the plaintiff. On the 4th day of March, 1889, Lewis Bradford commenced an action in the district court of Douglas county for the foreclosure of a mechanic's lien against said premises, to which the several mortgagees, as well as the holders of the title, Chittick and the Eatons, were made defendants. Summons was served on the several defendants March 6th, the answer day named therein being April 8th following. On the day last named Fred W. Gray filed a demurrer to the petition, and on May 11th had leave to withdraw his demurrer and file answer and cross bill, in which he prayed for the foreclosure of his mortgage. April 14, 1890, the petition of Bradford, the plaintiff, was dismissed at his cost. April 15th the default of Chittick and the Eatons was entered, and on the same day the cause proceeded to decree on Gray's cross bill, and in accordance with the prayer thereof. Under this decree the property was sold by Boyd, special master, to Cady, who subsequently conveyed to the defendant Lane, and two days thereafter the plaintiff conveyed his interest in said property to said defendant.

There are two facts appearing from the foregoing statement to which especial prominence is given in this brief of counsel, viz.: (1) That Mrs. Bartlett, through whom the plaintiff claims, acquired title from Chittick and the Eatons during the pendency of the foreclosure proceeding, and after the entry of the decree therein; (2) that her said grantors who held the legal title at the time of the filing of the cross bill were not served with summons or other formal notice thereof. It is clear both upon reason and authority that if the court had acquired jurisdiction of the defendants named, for the purpose of the cross bill, not only they, but their grantees as well, are estopped by the decree subsequently rendered. Another proposition firmly established by the decisions of this court is that where a defendant, after answer day, files a pleading in the nature of a cross petition for relief against a codefendant, the latter is entitled to notice thereof. See Hapgood v. Ellis, 11 Neb. 131, 7 N. W. 845;Manufacturing Co. v. Clark, 23 Neb. 702, 37 N. W. 628;Carlow v. C. Aultman & Co., 28 Neb. 672, 44 N. W. 873;Arnold v. Lumber Co., 36 Neb. 841, 55 N. W. 269; Havemeyer v. Paul (decided June 18, 1895) 63 N. W. 932. The question was, in each of the above cases, presented by direct attack upon the decree. But in this case counsel assert that such notice is in its nature a jurisdictional process, without which the decree is not voidable, merely, but absolutely void. Preliminary to a consideration of that question it should be observed that the district court, in the decree appealed from, in express terms, found that the defendants in the former suit were legally notified of the filing of the cross bill upon which the decree of foreclosure rests. The basis of that finding is the entry of notice in the motion docket conformably to the rules of the district court for Douglas county, which, so far as they relate to the subject in hand, are as follows: “(15) All motions relating to actions, except such as are made at or during the progress of a trial or hearing, or not incident to or relate to the time of trial, or are grantable of course, without notice, must be in writing and filed, unless the court shall see fit to dispense therewith, when the motion is made in open court, in the presence of counsel for the adverse party; and notice for the hearing of all such motions must be given as required by statute or these...