Sheedy v. McMurtry

• Decision Date: 04 April 1895
• Citation: 44 Neb. 499,63 N.W. 21
• Parties: SHEEDY v. MCMURTRY.
• Court: Nebraska Supreme Court

44 Neb. 499

63 N.W. 21

SHEEDY

v.MCMURTRY.

Supreme Court of Nebraska.

April 4, 1895.

Syllabus by the Court.

1. The right of a plaintiff to dismiss an action at any time he so desires is not an absolute unqualified right, but conditions precedent, such as payment of costs, may be imposed by the court, in its discretion.

2. An action for specific performance of a contract for sale of real estate was compromised after trial had in the district court, and appeal taken to this court, a third party purchasing the interest of plaintiff in such action. The defendant in the action, for a valuable consideration, became entitled to be released and discharged from all obligations existing upon him by virtue of such contract and a dismissal of the action.After these occurrences, and motion filed by defendant to dismiss the suit, and a dismissal filed by the party who succeeded to the interest of plaintiff, the attorney for plaintiff filed a lien for fees and expenses in conducting the suit, also a petition asking to be allowed to intervene and prosecute the appeal, unless such fees and expenses were paid. Held that, inasmuch as the plaintiff's right against defendant had been extinguished by settlement made before the lien was filed, or any notice of it given to defendant, there was nothing to which it could attach remaining in the hands of defendant, and the defendant was entitled to have the cause dismissed. Held, further, that the right to payment of such fees and expenses by the plaintiff, or the party who succeeded to her rights, could not be properly litigated in this action at this time.

Appeal from district court, Lancaster county; Tibbets, Judge.

Action by Mary Sheedy against James H. McMurtry for specific performance of a contract for the sale of land. Defendant had judgment, and plaintiff appeals. Dismissed.

C. O. Whedon and C. E. Magoon, for appellant.

J. R. Webster, for appellee.

HARRISON, J.

On the 27th day of May, 1893, Mary Sheedy and James H. McMurtry entered into a contract by which she agreed to sell and he to purchase certain real estate situate in the city of Lincoln, and at a subsequent date during the same year an action was commenced by Mary Sheedy in the district court of Lancaster county, the relief sought being a specific performance of the contract. Issues were joined, and trial of them had in the district court, and an appeal from the degree therein rendered taken to this court by the plaintiff. As the result of the negotiations between the parties and others during its pendency here, the property involved was conveyed by Mrs. Sheedy to Kent K. Hayden, the consideration being $1,750, and the following instrument executed by her and delivered to him: “Know all men by these presents that I, Mary Brust, formerly Mary Sheedy, in consideration of fifteen hundred dollars, to me in hand paid, and receipt whereof is hereby acknowledged, do hereby set over and assign to Kent K. Hayden, of Lincoln, Nebraska, all interest, claim, demand, or right of action I have or may claim against James H. McMurtry, of Lincoln, Nebraska, in, under, or in any way arising out of the contract for sale of my interests in the real estate and property of the estate of John Sheedy, deceased, bearing date May 27th, 1893, and I hereby authorize my said assignee to prosecute, collect, compromise, satisfy, release, and discharge all suits or claims founded on or growing out of said contract in his own name or in my name, as to him shall seem fit, but at his own cost and expense, and to his own proper use; and I hereby name, constitute, and appoint him, Kent K. Hayden, my true and lawful attorney in fact by these presents, irrevocable, in my name, place, and stead to do all things necessary or proper to be done in the premises as fully and effectually as I might do if myself personally present, hereby ratifying and confirming all my said attorney shall do in the premises.” It further appears that of the $1,750, the consideration agreed to be paid for Mrs. Sheedy by Kent K. Hayden, McMurtry paid $750 and Hayden $1,000, the agreement between these two parties being that, in consideration of the payment of the $750 by McMurtry, Hayden would release and discharge McMurtry from any and all liability under the contract of purchase, the basis of the action for specific performance. Hayden, on October 2, 1894, executed and delivered to McMurtry a full release, satisfaction, and discharge of all obligations on his part arising out of such contract, and on the same date the attorney for McMurtry filed a motion in this case for the dismissal of the appeal, setting forth therein, as grounds therefor, the facts in...