Phelps v. Wolff

• Decision Date: 08 June 1905
• Docket Number: 13,859
• Parties: EDWIN A. PHELPS ET AL. v. LOUISA WOLFF
• Court: Nebraska Supreme Court

103 N.W. 1062

74 Neb. 44

EDWIN A. PHELPS ET AL. v. LOUISA WOLFF

No. 13,859

Supreme Court of Nebraska

June 8, 1905

ERROR to the district court for Colfax county. CONRAD HOLLENBECK JUDGE. Judgment modified.

Judgment reversed in part and affirmed in part, and cause remanded.

George W. Wertz, for plaintiffs in error.

George H. Thomas, contra.

OPINION

BARNES, J.

This is a proceeding in error to reverse an order of the district court for Colfax county directing the entry of a decree nunc pro tunc in a foreclosure suit.

It appears that one Louisa Wolf commenced an action to foreclose a mortgage on certain real estate situated in Colfax county in the district court for that county against Goodwin W Phelps, Oweda Phelps, Julius F. Phelps, Charles J. Phelps and Edwin A. Phelps, and on the 7th day of December, 1895, obtained a decree against them. The judge's notes of the rendition of the decree appear on the court calendar of that date as follows: "Default as to all defendants except as to Julius F. Phelps. Amt. due plff. $ 802.87, to draw int. at 10 per cent. Decree of foreclosure accordingly, and order of sale in default of payment for twenty days." That thereafter the clerk journalized the decree, as shown by the court journal, in the words and figures following: "Louisa Wolff v. Goodwin W. Phelps et al. Now on this 7th day of December, A. D. 1895, this cause came on for hearing and trial to the court, and the defendants Oweda Phelps, Goodwin W. Phelps, Charles J. Phelps and Edwin A. Phelps, having failed to answer or demur, were each three times called in open court, but came not, and thereby made default, and default is hereby entered against them. On consideration whereof the court finds that there is due the plaintiff from the defendant the sum of $ 802.87, which said amount draws interest at the rate of ten per cent. per annum, and the sheriff is hereby ordered to advertise and sell said premises according to law, in default of payment for twenty days." The foregoing is the only decree or judgment in that action that appears in the records of the court. The defendant, Goodwin W. Phelps, at that time applied for and obtained a stay of order of sale, and, after the expiration of such stay, the real estate described in the mortgage was offered for sale, but not sold for want of bidders. Sometime afterwards the property was sold by the sheriff for the satisfaction of the decree, the sale confirmed, and thereupon the plaintiff applied to the court for a deficiency judgment. Her application was denied, and she appealed to the supreme court, where the order of the trial court was affirmed, for the reason that it did not appear from the record that any final judgment or decree had ever been rendered by the trial court. 3 Neb. (Unof.) 511. After the cause was remanded, the plaintiff filed a motion in the district court for the entry of a proper decree nunc pro tunc. Notice of the application was duly served. The defendants appeared and objected to the entry of such decree, and by their objections, among other things, denied all of the allegations contained in the plaintiff's application. Thereupon, a trial was had, and after the introduction of the evidence in support of the application, the court made an order directing the clerk to enter a decree of foreclosure as of the date of December 7, 1895. To this order the defendants excepted, and to reverse the decree the defendants, Edwin A. Phelps and Charles J. Phelps, prosecute error.

The plaintiffs in error contend that the defendant has been guilty of gross laches in permitting the journal to stand in its present condition for more than eight years. It appears from the record that the defendant has been striving to enforce the decree and obtain a deficiency judgment from the date of its rendition to the present time; that the property was sold as soon as a purchaser could be found in the ordinary course of procedure; that the sale was confirmed, and the defendant herein promptly made application for a deficiency judgment; that her application was denied, and from that order she prosecuted error to this court. She then ascertained for the first time that no final judgment or decree of foreclosure had been entered in the records of the trial court, and for that reason the order of the court denying her a deficiency judgment was affirmed. As soon as the cause was remanded, the proceeding, which is the foundation of the present action, was commenced, and resulted in the entry of the decree which is now complained of. So it cannot be successfully urged that she has been guilty of laches, as claimed by the plaintiffs.

It is also contended that the former judgment is still in force that a new judgment cannot be entered until such former...