Scudder v. Sargent

• Decision Date: 15 November 1883
• Citation: 17 N.W. 369,15 Neb. 102
• Parties: LUCY F. SCUDDER, APPELLEE, v. MOSES W. SARGENT, APPELLANT, AND JOHN G. ELLINWOOD, APPELLEE
• Court: Nebraska Supreme Court

17 N.W. 369

15 Neb. 102

LUCY F. SCUDDER, APPELLEE, v. MOSES W. SARGENT, APPELLANT, AND JOHN G. ELLINWOOD, APPELLEE

Supreme Court of Nebraska

November 15, 1883

APPEAL from the district court of Lancaster county. The plaintiff had judgment before POUND, J., in the district court of Cass county on the 21st day of November, 1879, declaring the title to the north half of the northwest quarter of section 30, in township 11 north, of range 9 east in Cass county to be in her, and that defendant Sargent had no interest therein. On the 7th day of January, 1880, Sargent by his attorneys served a notice on plaintiff of a motion to open the said judgment under sec. 82 of the civil code. On the 31st day of January 1880, plaintiff conveyed the land to Ellinwood. At the April term, 1880, the motion of Sargent to open the judgment was sustained and he let in to defend. Ellinwood was admitted as a defendant, the cause taken on change of venue of Lancaster county, and on a trial at the May term, 1883, in that county judgment was entered in favor of Ellinwood. Sargent appeals.

AFFIRMED.

Brown & Ryan Bros., for appellant Sargent, on the subject of lis pendens, cited: Bennett's Lessees v. Williams, 5 Ohio 462. Harman v. Byram, 11 W.Va. 511. American Exchange Bank v. Andrews, 12 Heisk, 306. Steele v. Taylor, 1 Minn. 274. Watson v. Wilson 2 Dana (Ky. ), 410. Dresser v. Wood, 15 Kan. 344. Rider v. Kelso, 53 Iowa 367. Center v. Bank, 22 Ala. 743 and 757. Allen v. Poole, 53 Miss. 333. Sugden on Vendors, 281, 285. Allen v. Morris, 5 Vroom (N. Y.), 159. Hunt v. Haven, 52 N.H. 162. Tilton v. Cofield et al., 93 U.S. (3 Otto), 163. 1 Story's Equity, 406. As against the other parties to the suit, his purchase having been made while the motion to open was pending, and after service of notice of the motion, he and his purchase are treated as if they never had existence. The subsequent opening of the case by the order of the court for defense, was a mere formal matter and the date of such opening is immaterial. Whenever Sargent had filed his answer, affidavit as to publication, and want of actual notice, and his motion, and given notice to the opposite party, his right to defend was complete, and under the statute the court could not deny or abridge it. Brown v. Conger, 10 Neb. 234. Savage v. Aiken, 14 Neb. 315.

A. C. Ricketts, for appellee Ellinwood, cited: Brown v. Conger, 10 Neb. 238. Taylor v. Boyd, 3 Ohio 338. Ludlow v. Kidd, 3 Ohio 541. Wade on Notice, §§ 337 and 377, inclusive. Page v. Waring, 76 N.Y. 463.

OPINION

LAKE, CH. J.

This case must be disposed of by a consideration of the right of a purchaser in good faith of land under a judgment subsequently opened pursuant to sec. 82 of the code of civil procedure, and reversed. The merits of that judgment, as between the original parties to the suit, are not involved in this inquiry.

The section in question provides that: "A party against whom a judgment or order has been rendered, without other service than by publication in a newspaper, may, within five years after the date of the judgment or order, have the same opened and be let in to defend; before the judgment or order shall be opened, the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; but the title to any property, the subject of the judgment or order sought to be opened, which by it or in consequence of it shall have passed to a purchaser in good faith, shall not be affected by any...