Phelps v. Blome
| Decision Date | 22 December 1948 |
| Docket Number | 32499. |
| Citation | 35 N.W.2d 93,150 Neb. 547 |
| Parties | PHELPS v. BLOME. |
| Court | Nebraska Supreme Court |
SYLLABUS BY THE COURT.
1. An agreement not to appeal a judgment or final order is valid, binding, and enforceable, if the intention to waive the right clearly appears from the terms of the agreement and it is supported by a sufficient consideration.
2. An objection to an appeal upon the ground that the parties agreed not to appeal from the judgment or final order may be made for the first time in the appellate court by a motion to dismiss, and affidavits or other competent evidence dehors the record may be received to establish the facts with relation thereto.
Torgeson & Halcomb, of Kimball, and E. E. Carr, of North Platte for appellants.
Mothersead & Wright and Robert G. Simmons Jr., all of Scottsbluff for appellee.
Heard before PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL and WENKE, JJ.
Plaintiff brought a forcible entry and detainer action against defendants in a justice of the peace court to obtain restitution of described ranch lands in Morrill County.
Upon trial of the issues to a jury, plaintiff recovered a verdict and judgment on March 14, 1947. On March 19, 1947, defendants filed an appeal bond, and on the same date plaintiff filed a bond and obtained an order for restitution, notwithstanding the appeal. On March 26, 1947, defendants were removed from the premises upon a writ of restitution dated March 15, 1947.
The issues in the forcible entry and detainer action itself are not involved in this appeal. After defendants had appealed to the district court, plaintiff filed a motion therein to dismiss the appeal, primarily upon the ground, pleaded specifically and at length, alleging in substance that after trial of the cause upon the merits and a verdict had been rendered in the justice court plaintiff and defendants entered into an oral agreement for valuable consideration, whereby defendants agreed not to appeal. Plaintiff alleged that he had in all respects complied with the agreement, therefore defendants were precluded from prosecuting the appeal. Defendants filed answer thereto, in substance denying generally, denying plaintiff's right to the remedy sought, pleading estoppel by conduct, and praying for an order overruling the motion. Evidence was adduced by the parties upon the issues thus presented in the district court for Scotts Bluff County, pursuant to agreement of the parties. At the conclusion thereof, the trial court entered its order adjudging and decreeing that plaintiff's motion should be sustained, and dismissing defendants' appeal. Motion for new trial was overruled, and defendants appealed to this court.
The primary questions presented by brief and argument are: (1) Whether or not there was in fact an enforceable agreement with defendants that they would not appeal, as claimed by plaintiff; and (2) if there were such an agreement, whether or not plaintiff's motion to dismiss was a proper remedy for its enforcement. We conclude that both propositions should be answered in the affirmative.
Plaintiff's evidence consisted of the testimony of plaintiff's attorney, who originally represented him in the justice court, whose testimony was verified by the testimony of defendants' attorney, who no longer represented them but was their attorney in the justice court and in the transaction whereby the alleged agreement was perfected. Plaintiff also offered in evidence the writ of restitution and return of the sheriff thereon. Defendants themselves did not testify, and the evidence to sustain their contentions consisted solely of copies of two letters, claimed by plaintiff's attorney to have been written by him to the sheriff, together with an affidavit of the sheriff who eventually executed the writ of restitution.
An examination of the record discloses competent evidence clearly ample and sufficient to sustain a finding that on March 14, 1947, after the verdict of the jury had been returned, it was voluntarily and expressly agreed between plaintiff and defendants that writ of restitution should issue, but should not be executed by the sheriff until March 25, 1947, who was to be so advised by plaintiff, in order to permit defendants to stay in possession until that date and thus give them time and opportunity to sell their cattle, and further that plaintiff would either purchase defendants' personal property, such as fences and corrals then on the premises as thereafter appraised, or if not so purchased, plaintiff would permit defendants to go upon the premises and remove such improvements within a reasonable time after March 25, 1947, in consideration of which defendants promised and agreed not to appeal.
There is competent evidence that plaintiff's attorney wrote the sheriff a letter on March 17, 1947, which letter was offered in evidence by defendants, in which the sheriff was notified had issued, but that defendants, restitution had issued, but that defendants, having agreed not to appeal if they could stay in possession until March 25, 1947, the writ should not be executed by him until that date. There is also competent evidence that after defendants had filed an appeal bond, plaintiff's attorney again wrote the sheriff a letter on March 20, 1947, which letter was also offered in evidence by defendants, in substance advising the sheriff of defendants' appeal, but that plaintiff had provided a bond and obtained an order of court for restitution notwithstanding defendants' appeal, therefore, if defendants did not remove from the premises as agreed, then the writ of restitution was to be fully executed by the sheriff in any event, but not before March 25, 1947.
The return of the sheriff, which appears upon the writ of restitution, dated March 15, 1947, discloses the following:
The substance of the sheriff's affidavit, offered in evidence by defendants, was at variance in some respects not only with the writ itself, but his own return appearing thereon, both of which import verity. For example, the affidavit stated that the writ of restitution was dated March 14, 1947, in which the sheriff was clearly mistaken. He said that he received it on March 15, 1947, contrary to the statement made in his return, and that he immediately advised defendants that he 'had the writ and that they would have to vacate said property; * * *.' It will be noted the sheriff did not say that he executed the writ at that time. He did not state in the affidavit just when that was done. The return affirmatively disclosed that the writ was not executed until March 26, 1947, which would be in conformity with plaintiff's contentions. He did not say in words, but intimated the fact that he did not receive the letters of plaintiff's attorney written on March 17, 1947, and March 20, 1947, respectively, by saying that 'I never received any directions from any one to hold up serving the writ * * *.'
It is well established in this jurisdiction that a sheriff's return upon a judicial process is prima facie proof of the service therein indicated, and that the return of such an officer cannot be impeached except by clear and convincing evidence. De Lair v. De Lair, 146 Neb. 771, 21 N.W.2d 498. The rule has application in the case at bar.
The record discloses that plaintiff did not purchase defendants' improvements, such as fences and corrals then on the premises, after appraisal thereof, but there is competent undisputed evidence in the record that they were never removed by defendants or the sheriff, but were purchased by the new owner in possession of the realty at some time after the termination of defendants' tenancy. We conclude that there was ample evidence to sustain a finding that the agreement was performed by plaintiff but breached by defendants, and that plaintiff was not estopped by his conduct from enforcing the agreement.
We come then to the question of whether or not the agreement was legally enforceable, and if so, whether or not plaintiff pursued the proper remedy. In that connection we find the following authoritiative statement in 2 Am.Jur., Appeal and Error, s. 204, p. 971: 'Though there are a few cases to the contrary the rule prevailing in the great majority of the jurisdictions is that an agreement, based on a sufficient consideration, not to appeal or take a writ of error, or a release of errors, is valid and binding and, when properly pleaded, will constitute a bar to proceedings taken in violation of the agreement. * * *
'An objection that the parties agreed not to appeal from the judgment may be made for the first time in the appellate court where the agreement was not filed in the trial court and the appeal was allowed by that court in ignorance...
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