Scarborough v. Myrick

• Decision Date: 07 April 1896
• Docket Number: 6243
• Citation: 66 N.W. 867,47 Neb. 794
• Parties: W. B. SCARBOROUGH v. MYRON N. MYRICK
• Court: Nebraska Supreme Court

66 N.W. 867

47 Neb. 794

W. B. SCARBOROUGH v. MYRON N. MYRICK

No. 6243

Supreme Court of Nebraska

April 7, 1896

ERROR from the district court of York county. Tried below before WHEELER, J.

REVERSED AND REMANDED.

Sedgwick & Power, for plaintiff in error.

George B. France, contra.

OPINION

NORVAL, J.

This action was instituted in the district court of York county on the 5th day of April, 1892, by Myron N. Myrick against W. B Scarborough, to quiet the title to the real estate herein described, and to annul a certain contract entered into by and between them, by the terms of which the plaintiff agreed to convey, upon certain considerations, the southwest quarter of section 3, the southeast quarter of section 4, the northeast quarter, and the northeast quarter of the northwest quarter of section 9, and the west half of the northwest quarter of section 10, all in township 12 north, range 3 west, York county, Nebraska. Affidavit for substituted service of summons was made and filed, notice of the pendency of the suit was duly published, and, without any appearance on the part of the defendant, a decree as prayed was rendered against him on the 16th day of June, 1892. At a subsequent term of the court, to-wit, December 30, 1892, the defendant through his attorneys, filed a motion to set aside said decree, accompanied with the affidavits of his attorneys in support thereof, and filed his answer in said cause. The application was heard upon affidavits, and also evidence taken by the oral examination of witnesses, which testimony is embodied in the bill of exceptions found in the record. The court refused to set aside the decree, and the defendant has brought the case into this court for review.

One of the grounds urged for a reversal is that the petition fails to state a cause of action. Plaintiff insists that the sufficiency of the petition cannot now be raised, since the cause was not docketed in this court within six months from the entry of the decree, and further, because no motion for a new trial was filed in the court below. The cause is not here upon appeal, but by proceedings in error. Therefore the defendant was not required to have the cause docketed within six months from the date of the decree. Proceedings in error may be commenced in this court at any time within one year from the rendition of the judgment, or decree, or final order sought to be reviewed. (Bemis v. Rogers, 8 Neb. 149; Rogers v. Redick, 10 Neb. 332, 6 N.W. 413; Hendrickson v. Sullivan, 28 Neb. 790, 44 N.W. 1135.) The record discloses that the transcript and petition in error were filed in this court on June 14, 1893, which was less than a year after the decree was pronounced in the district court. No motion for a new trial was necessary to test in this court the sufficiency of the petition. (Hays v. Mercier, 22 Neb. 656, 35 N.W. 894; Donohue v. Hendrix, 13 Neb. 255, 13 N.W. 215; Schmid v. Schmid, 37 Neb. 629, 56 N.W. 207; Hansen v. Kinney, 46 Neb. 207, 64 N.W. 710; Farris v. State, 46 Neb. 857, 65 N.W. 890.)

It is insisted that the petition does not state a cause of action, and is therefore insufficient to support the decree, because it fails to allege that plaintiff was the owner of the lands in controversy at the time the action was brought. Undoubtedly a plaintiff must have title to, or claim an interest in, the real estate in order to maintain an action quia timet, but he is not required to allege and prove a fee-simple title; especially is this so where he is in possession of the property. (Brewer v. Merrick County, 15 Neb. 180, 18 N.W. 43; McDonald v. Early, 15 Neb. 63, 17 N.W. 257; Foree v. Stubbs, 41 Neb. 271, 59 N.W. 798.) In the case at bar the petition alleges "that the plaintiff was, at the time of the making and execution of the contract hereinafter mentioned [the one he sought to have canceled] the owner, and is now, and has been for more than five years last past, in the possession" of the premises in controversy. There is no averment in the pleading attacked that plaintiff has ever parted with the title in the property which he at one time held, and, at least after decree, we must presume that plaintiff continued to be the owner of the property when this suit was brought. Manifestly this is so, since the plaintiff alleges the making of the contract to convey the property to the defendant, and that the latter has wholly failed and refused to perform the conditions and stipulations therein contained on his part to be kept and observed, thereby showing affirmatively that the defendant has forfeited all rights or interest which he may have had in the contract and lands therein described. While the petition is not as full in its averments as might be desired by some pleaders, yet we think, under the liberal rules of code pleading, it states a cause of action.

One of the grounds stated in the motion to set aside the decree and permit a defense to be made is that there was no other service of summons upon the defendant than by publication. Under section 82 of the Code of Civil Procedure a party against whom a judgment or decree is entered upon constructive service alone, has a right to have such judgment or decree opened any time within five years by complying with the several requirements of said section, two of which being that the party shall give notice of his application to his adversary, and also establish that the defendant had no actual notice of the pendency of the suit in sufficient time to appear in court and contest the cause. This record fails to disclose that notice of the motion to open the decree was served upon the plaintiff. It does, however, show that he appeared and resisted the application, which was a waiver of formal notice. The evidence adduced on the hearing fails to establish that the defendant did not have actual notice that the suit was pending. It follows that the defendant was not entitled to have the decree opened under said section 82. (Merriam v. Gordon, 20 Neb. 405, 30 N.W. 410; Stover v. Hough, 47 Neb. 789, 66 N.W. 825.)

It is urged that the trial court did not acquire jurisdiction on account of alleged defects in the affidavit for publication and in the published notice. It is true that the affidavit upon which constructive service of summons was based is jurisdictional, and if there is an entire omission of an averment upon a vital or material matter, the court will not acquire jurisdiction by the published notice, but the proceedings will be absolutely void. The affidavit must disclose, in addition to the fact that the defendant is a nonresident of this state, and service cannot be had upon him therein, that the action is one of those mentioned in section 77 of the Code, in which constructive service can be made. Tested by this rule the affidavit for publication in the case at bar is sufficient. It states the date of the filing of the petition against the defendant, that the object and prayer of the petition is to declare an agreement entered into between plaintiff and defendant on February 26, 1890, to be null and void, to cancel the same of record, and to quiet in plaintiff the title to certain real estate specifically described in said contract, as in the petition set forth, and that the defendant is a non-resident of the state and service of summons cannot be made upon him therein. It was not necessary that the affidavit should disclose plaintiff's title to the property in controversy. He was not required to state his cause of action in the affidavit, but in his petition. (Grebe v. Jones, 15 Neb. 312, 18 N.W. 81.) The affidavit shows that the nature or the character of the suit is one in which the statute authorizes service by publication to be had, and that is sufficient so far as that point is concerned. (Fouts v. Mann, 15 Neb. 172, 18 N.W. 64; Taylor v. Coots, 32 Neb. 30, 48 N.W. 964.) Our statute authorizes service by publication in actions to quiet title to real estate when the defendant is a nonresident. (Arndt v. Griggs, 134 U.S. 316, 33 L.Ed. 918, 10 S.Ct. 557.)

Another complaint is...