Riley Bros. Co. v. Melia

• Decision Date: 19 November 1902
• Citation: 92 N.W. 913,3 Neb. [Unof.] 666
• Parties: RILEY BROS. CO. v. MELIA ET AL.
• Court: Nebraska Supreme Court

3 Neb. [Unof.] 666

92 N.W. 913

RILEY BROS. CO.

v.MELIA ET AL.^a1

Supreme Court of Nebraska.

Nov. 19, 1902.

Commissioners' opinion. Department No. 2. Appeal from district court, Douglas county; Estelle, Judge.

“Not to be officially reported.”

Action by the Riley Bros. Company against James Melia and others. Judgment for defendants, and plaintiff appeals. Affirmed.Bernard N. Robertson, for appellant.

Montgomery & Hall, M. A. Low, W. F. Evans, and Woolworth & McHugh, for respondents.

BARNES, C.

This is an appeal in equity from a decree of the district court of Douglas county. It is unnecessary for us to set forth the pleadings, or their substance, because there was no conflict of evidence on the trial in the lower court, and the record fairly establishes the following state of facts: One Catherine Melia was in her lifetime the owner of the undivided one-half of lot 6 in block 225 of the city of Omaha, Douglas county, Neb. On the 18th day of August, 1892, she conveyed said premises to one W. W. Phelps, who on that day executed and delivered a conveyance of said property to the Chicago, Milwaukee & St. Paul Railway Company and the Chicago, Rock Island & Pacific Railroad Company; the said W. W. Phelps acting as the representative of the companies. Mrs. Melia died in October, 1893. In September, 1896, James Melia and Martin Melia, together with the other two heirs of Catherine Melia, instituted a proceeding in equity in the district court of Douglas county to set aside the conveyance made by Catherine Melia upon the ground that at the time of the execution of said conveyance she was insane and incompetent to enter into any contract, and that she had received no consideration therefor. Issue was joined in that case, and a decree was rendered by the district court canceling the said conveyance, and quieting the title to the said premises in the heirs at law of Catherine Melia. An appeal from that decree to this court was immediately perfected, and a supersedeas bond was duly executed, approved, and filed. Subsequently, in July, 1899, and while said case was pending in this court, a settlement of it was effected, and a stipulation was entered into by and between the parties thereto, agreeing that a decree should be entered reversing the judgment of the lower court and remanding the cause, with directions to the said court to enter a decree dismissing the suit; and at the same time the heirs of Catherine Melia executed a conveyance to the railroad companies, appellees herein. Thereafter, on July 12, 1899, and in vacation, said stipulation was presented to the clerk of this court, who purported to enter a decree reversing the judgment of the court below, and remanding the case, with directions to enter a decree dismissing the bill. A mandate was issued by the clerk, and filed with the clerk of the district court of Douglas county, and pursuant thereto the district court entered a decree setting aside its former judgment and dismissing the suit. Such was the situation when the present proceeding was instituted. This proceeding was begun by the appellant, which is a judgment creditor of two of the heirs of Catherine Melia, to wit, James Melia and Martin J. Melia; the judgment having been obtained against said heirs during the lifetime of Catherine Melia, and kept alive by the issuance of an execution. In its petition filed herein the plaintiff did not attack the conveyance of Catherine Melia of the premises in question, and did not seek to set aside said conveyance, nor did it allege that Catherine Melia was insane at the time of the execution of her deed heretofore mentioned. The petition alleged the facts above stated, and it was claimed therein that the clerk of this court had no power to enter a decree in vacation upon the stipulation above mentioned; that such decree was not a decree of this court, that the mandate issued by the clerk in vacation thereon was void, and that the action of the district court, pursuant to said mandate, in dismissing the case, was unauthorized and void. After the petition herein was filed, counsel for the railroad companies, appellees herein, presented the stipulation aforesaid to this court in open session; and thereupon the court entered a formal decree in the cause aforesaid, pursuant to said stipulation, reversing the judgment of the lower court, and remanding the cause to said court, with directions to enter a decree dismissing the suit. This decree so rendered by this court in open session was duly entered by the clerk, and a mandate pursuant thereto was issued to the district court of Douglas county, which court thereupon, pursuant to said mandate, entered a decree on the 8th day of March, 1901, setting aside, reversing, vacating, and annulling its first decree in favor of the heirs in said cause, and dismissing the said cause for want of equity. These proceedings were presented to the lower court in this case by a supplemental answer filed by the railroad companies, appellees. Thereupon the cause came on to be heard, and, after a trial and submission thereof, the district court made a finding in favor of the defendants, appellees herein, and entered a decree dismissing the plaintiff's petition for want of equity. From that decree the plaintiff has perfected this appeal.

Appellant now contends that it obtained a lien upon the premises in question by reason of the entry of the decree in the case of the heirs of Catherine Melia against the appellees, and now seeks to have this court enter a decree setting aside the conveyance of the premises in question by Catherine Melia to W. W. Phelps, and subjecting the property to a sale upon execution to satisfy its alleged judgment lien. On the other hand, it is contended by appellees that no lien or right whatever exists in favor of the appellant by reason of the proceedings in the former case. It will be observed that at the time when this action was commenced an appeal had been duly taken and perfected from the decree rendered in the district court to this court. This makes it necessary for us to determine the effect of such appeal upon the decree rendered in the court below. It is provided by section 675 of the Code of Civil Procedure that in all actions in equity either party may appeal from the judgment or...