Sch. Dist. No. 34, Adams Cnty. v. Kountze Bros.

• Decision Date: 19 November 1902
• Citation: 92 N.W. 597,3 Neb. [Unof.] 690
• Parties: SCHOOL DIST. NO. 34, ADAMS COUNTY, v. KOUNTZE BROS.
• Court: Nebraska Supreme Court

3 Neb. [Unof.] 690

92 N.W. 597

SCHOOL DIST. NO. 34, ADAMS COUNTY,

v.KOUNTZE BROS.^a1

Supreme Court of Nebraska.

Nov. 19, 1902.

Commissioners' opinion. Department No. 1. Error to district court, Adams county; Adams, Judge.

“Not to be officially reported.”

Action by Kountze Bros. against school district No. 34, Adams county. Judgment for plaintiff. Defendant brings error. Affirmed.W. F. Button, for plaintiff in error.

John M. Ragan and Reavis & Reavis, for defendant in error.

HASTINGS, C.

In this case the school district complains because the district court sustained a motion to revive a judgment. The application for revivor set forth that Kountze Bros., a corporation, were the owners of the judgment which was rendered June 26, 1878, in the district court of Adams county in favor of Herman Kountze and Augustus Kountze, copartners, against school district No. 34 of Adams county; that no execution had been issued; that it bore 10 per cent. interest,--and asked that it be revived in favor of Kountze Bros., a corporation. A showing was attached setting forth a series of payments,--the first June 27, 1881, and the last May 17, 1899, aggregating nearly $2,000. A conditional order was entered requiring the school district to show cause by November 7, 1901, why the judgment should not be revived in favor of Kountze Bros., a corporation; and on November 6, 1901, the school district filed an answer admitting the corporation to be the successor of Herman and Augustus Kountze, and the owner of the judgment, but denying the corporation's right to maintain this proceeding for revivor, because the original judgment had never been revived in its name. The answer further set forth that the judgment was based on two bonds, for $500 each; that school district No. 34 of Adams county, by permission of the superintendent of public instruction of that county, joined with school district No. 21 of Hall county, under similar permission, for school purposes; that the bonds were issued by the two districts, but in the name of district No. 34 alone; that the judgment was pronounced against both school districts and their territory, but no summons was ever issued against school district No. 21, nor did it appear in the action; that the judgment was a general judgment against both the school districts, and could not be revived against district No. 34 alone, and that it had been dormant for 18 years, to wit, since 1883; and that the proceedings were barred by the statute of limitations. A reply to this showing was filed, denying all its allegations, except that the judgment was rendered upon two bonds for $500 each. The reply further alleged that in certain mandamus proceedings the officers of Adams county and of school district No. 34 had claimed that the judgment was totally void, and also claimed that it was irrevocably dormant; that said action of mandamus, after its determination by the district court of Adams county, had been appealed to this court, and that this court had held that there was no judgment against school district No. 21 in Hall county, and that the judgment against district No. 34 of Adams county had become dormant; that the original judgment had been rendered June 26, 1878, against school district No. 34 of Adams county for $1,258.98, and $18.83 costs; that there was still due on the judgment $2,012.10, and interest at 10 per cent. from November 11, 1901; that the judgment was the property of Kountze Bros., copartners, and the corporation was entitled to have it revived in the corporate name. The trial court found generally for the applicant, and ordered the judgment revived in the name of Kountze Bros., a corporation. The defendant renews in this court its objections.

Evidently the judgment would not be void merely because taken against one of two parties who were jointly liable. The omission of the other party might be an error, but would not deprive the court of jurisdiction as regards the one. It is true that this court, in Alter v. State, 86 N. W. 1080, determined that there was no judgment against school district No. 21 of Hall county, but it also found that there was...