Schroeder v. Homestead Corp.

Decision Date29 June 1956
Docket NumberNo. 33986,33986
Citation77 N.W.2d 678,163 Neb. 43
PartiesJohn SCHROEDER and Roy M. Harrop, Appellants, v. HOMESTEAD CORPORATION et al., Appellees, William W. Freeland, Intervener, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. A motion to dismiss is not the proper mode of raising the defense of a former adjudication.

2. A litigant, relying upon the doctrine of res judicata involved in a pending case, bears the burden of introducing evidence to prove such defense.

3. Judicial notice will not be taken of a judgment in another suit as res judicata when not pleaded or given in evidence.

Roy M. Harrop, Omaha, William L. Walker, Lincoln, for appellants.

O'Hanlon & O'Hanlon, Blair, for Homestead Corp.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action wherein John Schroeder and Roy M. Harrop, plaintiffs, make application for writ of scire facias for execution against Ned Tyson and Irma Tyson, husband and wife, and other defendants. The action is instituted under the Uniform Enforcement of Foreign Judgments Act, sections 25-1587 to 25-15,104, R.S.Supp., 1955, which became effective August 27, 1949, on a foreign judgment rendered December 30, 1952, in the district court for Harrison County, Iowa, an authenticated copy of said judgment being registered in the office of the clerk of the district court for Washington County, Nebraska, on September 2, 1955.

This case is here on the transcript, there being no bill of exceptions presented on this appeal.

On January 6, 1956, the plaintiffs as above mentioned filed a pleading in the district court for Washington County, Nebraska, entitled: 'Praecipe and application for writ of scire facias for execution on registered judgment and decree.' The purpose of the action was to have execution issued by the clerk of the district court for Washington County, Nebraska, to the sheriff of said county directing the sheriff to place the applicants, John Schroeder and Roy M. Harrop, as owners of the said premises described in the registered judgment, in possession of the same, and for such other and further relief as might be just and equitable.

On January 10, 1956, Ned Tyson and Irma Tyson filed a motion for dismissal of the action with prejudice as to them, setting forth that they, as plaintiffs, jointly commenced an action in the district court for Washington County, Nebraska, to quiet their title in certain real estate in said county owned by them, in which action Roy M. Harrop and John Schroeder were made parties defendant, and were duly served and entered their appearance; that thereafter, on November 17, 1955, the district court for Washington County entered its decree finding that Ned Tyson and Irma Tyson were the owners in fee simple of the real estate described in their petition, free and clear of any rights, claims, interests, or title of all the defendants including Roy M. Harrop and John Schroeder, and restrained all of the said defendants from setting up or asserting any right, title, interest, lien, claim, or demand in or to said real estate; and that said decree had not been appealed from and was final and conclusive, and that by the terms thereof the said Roy M. Harrop and John Schroeder were barred, restrained, and enjoined from thereafter asserting any right, claim, demand, or title in or to the real estate described therein, including any rights or titles which they assert in the above-entitled action and which rights and titles so alleged and asserted in said action are by the pleadings of said plaintiffs (Ned Tyson and Irma Tyson) shown to have been acquired prior to the date of said quieting title action of these parties.

On January 19, 1956, the applicants, John Schroeder and Roy M. Harrop, filed a pleading entitled 'resistance to motion for dismissal' wherein they alleged that there were no such lands as purported to be described in the judgment obtained by Ned Tyson and Irma Tyson, within the jurisdiction of the district court for Washington County, Nebraska, as shown by the United States government survey; that the lands owned by the applicant in their registered judgment embraced lands in which they had the legal title describing the same in Harrison County, Iowa, making the judgment a part of the pleadings; and alleged further that the district court for Washington County, Nebraska, was required to take judicial notice of the said judgment which was entitled to full faith and credit under the Iowa-Nebraska Boundary Compact of 1943, approved by the Nebraska Legislature on May 7, 1943. In addition, the applicants moved the court to enter judgment on the pleadings in their favor against Ned Tyson and Irma Tyson, to issue a writ of scire facias for execution, and deliver the same to the sheriff of Washington County, Nebraska, to place them in possession of the lands described in their registered judgment. In addition, the applicants requested that the motion of Ned Tyson and Irma Tyson for dismissal of their action be overruled and that they have judgment on the pleadings against the said defendants.

On January 19, 1956, the trial court sustained the motion of Ned Tyson and Irma Tyson for dismissal with prejudice, and allowed other defendants further time to plead.

From the order of dismissal with prejudice, plaintiffs John Schroeder and Roy M. Harrop appeal to this court.

Before determining this appeal, we set forth the sections of the statutes involved under the Uniform Enforcement of Foreign Judgments Act.

Section 25-1587, R.S.Supp., 1955, provides in part as follows: 'As used in sections 25-1587 to 25-15,104: (1) 'Foreign judgment' means any judgment, decree or order of a court of the United States or of any state or territory which is entitled to full faith and credit in this state. (2) 'Register' means to file and docket and record a foreign judgment in a court of this state.'

Section 25-1588, R.S.Supp., 1955, provides: 'On application made within the time allowed for bringing an action on a foreign judgment in this state, any person entitled to bring such action may have a foreign judgment registered in any court of this state having jurisdiction of such an action.'

Section 25-1589, R.S.Supp., 1955, provides in part as follows: 'A petition for registration shall set forth a copy of the judgment to be registered, the date of its entry and the record of any subsequent entries affecting it, * * * and a prayer that the judgment be registered.'

Section 25-1594, R.S.Supp., 1955, provides: 'Any defense, set-off, or counterclaim, which under the law of this state may be asserted by the defendant in an action on the foreign judgment may be presented by appropriate pleadings and the issues raised thereby shall be tried and determined as in other civil actions. Such pleadings must be filed within thirty days after personal jurisdiction is acquired over him or within thirty days after the mailing of the notice prescribed in section 25-1591.'

Section 25-1597, R.S.Supp., 1955, provides: 'An appeal may be taken by either party from any order sustaining or setting aside a registration on the same terms as an appeal from a judgment of the same court.'

For convenience we will refer to the parties as designated in the district court.

The principal assignment of error and the one that determines this appeal may be stated as follows: The trial court erred in sustaining the defendants' motion to dismiss with prejudice the plaintiffs' action.

It is obvious that the defendants are relying on the defense of res judicata, that is, that the judgment obtained by them in the district court for Washington County, Nebraska, fixes the rights of the parties and terminates the controversy to any subsequent litigation as brought by the plaintiffs, and is conclusive evidence of those rights. See, Nelson v. Nelson, 152 Neb. 741, 42 N.W.2d 654; Robinson v. Dawson County Irr. Co., 142 Neb. 811, 8 N.W.2d 179; and other cases too numerous to cite.

We deem the following to be applicable.

As stated in Kralick v. Shuttleworth, 49 Idaho 424, 289 P. 74, 77: 'In any event, the defense of res adjudicata cannot be raised by motion to dismiss. 34 C.J., p. 1058; Attica State Bank v. Benson, 8 Kan.App. 566, 54 P. 1037...

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  • Gem City Bone & Joint, P.C. v. Meister
    • United States
    • Nebraska Supreme Court
    • August 7, 2020
    ...See Neb. Rev. Stat. §§ 25-1587 to 25-15,104 (Reissue 1989). See, also, Olson v. England , supra note 2; Schroeder v. Homestead Corp. , 163 Neb. 43, 77 N.W.2d 678 (1956).13 See § 25-1597. See, also, Schroeder v. Homestead Corp. , supra note 12.14 See, generally, Hara v. Reichert , 287 Neb. 5......
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    • United States
    • Nebraska Supreme Court
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  • State ex rel. Weasmer v. Manpower of Omaha, Inc.
    • United States
    • Nebraska Supreme Court
    • January 18, 1957
    ...again to trial, an answer is that at the time and under the circumstances of making, the motion was premature. In Schroeder v. Homestead Corp., 163 Neb. 43, 77 N.W.2d 678, 382, this court said: 'The general rule is that a person relying upon the doctrine of res judicata as to a particular i......
  • State v. Gerdes
    • United States
    • Nebraska Supreme Court
    • September 29, 1989
    ..." State ex rel. Weasmer v. Manpower of Omaha, Inc., 163 Neb. 529, 534, 80 N.W.2d 580, 583 (1957) (quoting Schroeder v. Homestead Corp., 163 Neb. 43, 77 N.W.2d 678 (1956)). Furthermore, " '[a] judgment will not operate as res judicata unless it appears on the face of the record, or is shown ......
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