State Life Ins. Co. of Indianapolis, Ind. v. Heffner

Decision Date12 November 1936
Docket NumberNo. 29764.,29764.
Citation131 Neb. 700,269 N.W. 629
PartiesSTATE LIFE INS. CO. OF INDIANAPOLIS, IND., v. HEFFNER ET AL.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. The district court has the right and power to vacate, set aside, amend or correct any judgment or order made by it during the same term at which it was rendered if it appears that its former judgment was the result of fraud, accident or mistake.

2. “A court of equity, when justice requires it and its powers are seasonably invoked, may vacate an order confirming a judicial sale and discharge the purchaser who has become such through fraud, accident or mistake.” Kampman v. Nicewaner, 60 Neb. 208, 82 N.W. 623.

3. Where a judgment is rendered against a defendant in a district court having two judges, by one of the judges thereof, an application at the same term to vacate and set aside such judgment on the ground that the same was obtained by mistake may properly be heard by whichever judge of the court is presiding at the time the application is presented.

4. Inadequacy of price will not prevent a confirmation of a foreclosure sale unless it is so inadequate as to shock the conscience of the court or amount to evidence of fraud.

5. “When it appears from the evidence that the amount of the mortgage liens on the land exceeds its value, a moratory stay under section 20-21,159, Comp.St.Supp.1935, must be denied.” Srajhans v. Mares, 130 Neb. 924, 267 N.W. 82.

Appeal from District Court, Lincoln County; Nisley, Judge.

Suit by the State Life Insurance Company of Indianapolis, Ind., against Pauline E. Heffner and another, wherein the First National Bank of North Platte filed a cross-petition. From an adverse judgment, defendants appeal.

Affirmed.

Hoagland, Carr & Hoagland, of North Platte, for appellants.

Halligan, Beatty & Halligan and Lowell C. Davis, all of North Platte, for appellee State Life Ins. Co.

Heard before GOSS, C. J., and GOOD, EBERLY, and CARTER, JJ., and MESSMORE, District Judge.

CARTER, Justice.

This is an appeal from an order of the district court for Lincoln county denying the application of the appellant Pauline E. Heffner to have a prior order vacating a previous foreclosure sale set aside and from an order overruling objections to confirmation.

The record discloses that on and prior to December, 1924, Pauline E. Heffner was the owner of section 1, township 10, north of range 30, west of the 6th P. M. in Lincoln county, and that she executed a note and mortgage to the Lincoln Trust Company for $16,000 at that time. This mortgage was subsequently assigned to the State Life Insurance Company, the appellee herein. On April 4, 1925, Pauline E. Heffner sold the east half of section 1 to her son Earl Heffner, subject to the mortgage. Earl Heffner subsequently executed a second mortgage on the east half of section 1 to the First National Bank of North Platte for $5,000. Default having been made in the payments due under the first mortgage, foreclosure proceedings were commenced, and, on April 25, 1934, a decree of foreclosure was entered by the district court for Lincoln county finding the amount due on the first mortgage to be $18,436.30, and the amount due on the second mortgage on the east half of section 1 to be $5,481.50. On February 27, 1935, the clerk of the district court issued an order of sale in which he erroneously described the land to be sold as “the east half of section one” instead of “all of section one,” and the sale was thus erroneously advertised. On the day of the sale, R. H. Beatty, one of the attorneys for the plaintiff, acting under instructions from plaintiff, and without knowledge of the erroneous description of the real estate being sold, directed the sheriff to enter a bid on behalf of the plaintiff for all of section 1 for $19,000. The sheriff made his return to the order of sale showing that plaintiff bid $19,000 for the east half of section 1. On April 10, 1935, and during the March, 1935, term of court, without knowledge of the error in the description of the real estate, the sale was confirmed by Judge Nisley, one of the district judges of that judicial district. On May 6, 1935, and before the closing of the March, 1935, term of court, Judge Tewell, the other district judge of that judicial district, after having the mistake called to his attention, vacated the confirmation of sale, the sale of the real estate and the sheriff's deed, and directed that a new order of sale be issued. Thereupon a new order of sale was issued, all of section 1 was advertised for sale and, on June 12, 1935, sold to plaintiff for $19,538.54. On July 6, 1935, Pauline E. Heffner filed application to have the order of May 6, 1935, setting aside the first sale and confirmation thereof vacated, and on the same day filed objections to the confirmation of the second sale. On the same date the appellant Earl Heffner filed an application for a moratory stay. On October 10, 1935, after a hearing, Judge Nisley denied the application to vacate the order of May 6, 1935, overruled the objections to the confirmation of the sale, denied the application for a moratory stay and confirmed the second sale. From the entry of this order, the defendants have appealed.

Appellants contend that the district court was without power to vacate the decree of confirmation entered on April 10, 1935, even though it was done during the same term of court at which it was entered.

[1] In Douglas County v. Broadwell, 96 Neb. 682, 148 N.W. 930, this court said: “A judge of the district court has the right and power to set aside and vacate any judgments or orders made by him during the term at which the vacating order is made. Such vacating order may be made upon the court's own motion, if satisfied that an error has been made.”

In Netusil v. Novak, 120 Neb. 751, 235 N.W. 335, 336, we said: “In passing, we observe that the procedure followed by the trial court is in line with the modern prevailing tendency toward practicalism which seeks to shorten and to simplify judicial procedure. It is the well-established law of this state, as well as of others, that the trial court has the right and power to vacate, set aside, amend or correct any judgments or orders made by it during the same term. Such orders may be entered upon the court's own motion as well as upon the motion of counsel.”

In Dimmel v. State, 128 Neb. 191, 258 N.W. 271, this court said: “The district court has jurisdiction to set aside its own judgment during the term at which it was rendered, if it believes that its former conclusion is erroneous.”

[2][3] It is apparent from the record that, because of an error of the clerk...

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9 cases
  • First Trust Company of Lincoln v. Smith
    • United States
    • Nebraska Supreme Court
    • 22 Febrero 1938
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    ... ... An affidavit to extend the ... life of the mortgage, in compliance with section 8267, ... of plaintiff as to what the law was in this state on ... this subject ...          It ... Heffner, 131 Neb. 700, 269 ... N.W. 629, 630, it was ... ...
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    ... ... postponement of fulfilment of obligations decreed by the ... state through the medium of the courts of the legislature ... Its essence is ... be denied. State Life Ins. Co. v. Heffner, 131 Neb ... 700, 269 N.W. 629 ...          It does ... not ... ...
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    ... ...          Suit by ... the State Life Insurance Company of Indianapolis, Ind., ... against Pauline E. Heffner and another, wherein the First ... National Bank of North ... ...
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