Ragan v. Morrill

• Decision Date: 04 January 1895
• Citation: 43 Neb. 361,61 N.W. 590
• Parties: RAGAN v. MORRILL ET AL.
• Court: Nebraska Supreme Court

43 Neb. 361

61 N.W. 590

RAGAN

v.MORRILL ET AL.

Supreme Court of Nebraska.

Jan. 4, 1895.

Syllabus by the Court.

The question whether or not the district court has jurisdiction of the subject of the action, and of his person, cannot be raised by one who, in respect to such subject, has voluntarily appeared, and presented his claim, by proper pleading, for adjudication by such court.

Appeal from district court, Seward county; Smith, Judge.

Bill by Oscar C. Ragan against Charles A. Morrill, impleaded with Hargreaves Bros. From a decree against them, Hargreaves Bros. appeal. Affirmed.A. J. Cornish, for appellants.

Colman & Colman, S. H. Sedgwick, D. C. McKillip, and Harwood, Ames & Pettis, for appellee.

RYAN, C.

This action was begun by Oscar C. Ragan, in the district court of Seward county, to have it decreed that the S. W. 1/4 of section 19 in township 11 N., range 1 E., sixth P. M., was unaffected by a lien, as incidental to either of two judgments, one of which was in favor of Tootle, Hosea & Co.; the other, in favor of Charles A. Morrill. These judgments had been rendered against John O'Donnell while he was the owner of the aforesaid property, and while he and his family were in possession thereof, claiming the same as their homestead. These judgment creditors made a showing that Hargreaves Bros. had two mortgages on the premises above described, by virtue of which said judgment creditors were entitled to certain rights; and they therefore, by motion, asked that Hargreaves Bros. should be made defendants, as necessary parties. This motion was sustained, and afterwards Hargreaves Bros. appeared, and answered the cross petition of Tootle, Hosea & Co., and that of Charles A. Morrill. In these cross petitions no claim of lien had been asserted by virtue of the judgments alone, and consequently the district court, before Hargreaves Bros. had been made defendants, had decreed the relief prayed in the original petition, so far as to determine that said judgments, by their own force, created no lien. The controversies thenceforward were simply as to the rights of the creditors of the firm of O'Donnell Bros., which firm had been composed of John and James O'Donnell. Tootle, Hosea & Co. and Charles A. Morrill obtained their judgments, not only against John O'Donnell, as above recited, but, as well, against James; the indebtedness, in each instance, having been incurred by the firm of O'Donnell Bros. for goods sold said firm while it was engaged in the retail merchandise business in the towns of Waco and Utica. It is unnecessary, in this particular connection, to state what facts were set out in the cross petition of Tootle, Hosea & Co., and that of Charles A. Morrill. The responsive answers and cross petition of Hargreaves Bros., in the first place, contained a general denial of the averments of the cross petition of Tootle, Hosea & Co., and of Charles A. Morrill, except as afterwards the correctness of some of the statements of said cross petitions should be admitted. Following the above denials, the answer and cross petition of Hargreaves Bros. admitted that John O'Donnell and his wife had executed their promissory note to Hargreaves Bros., as trustee for certain creditors of the said John O'Donnell, for the sum of $2,000, secured by the mortgage of the makers of said note on the real property hereinbefore described, and that there had been paid on said note the sum of $800, and the interest on that payment. Hargreaves Bros. further alleged that, as trustee for said creditors, said firm had received $150 cash...