Symns v. Noxon

• Decision Date: 29 April 1890
• Citation: 45 N.W. 680,29 Neb. 404
• Parties: SYMNS v. NOXON.
• Court: Nebraska Supreme Court

29 Neb. 404

45 N.W. 680

SYMNS

v.NOXON.

Supreme Court of Nebraska.

April 29, 1890.

Syllabus by the Court.

A decree foreclosing a mortgage on real estate was rendered February 4, 1886. Two orders of sale were issued under this decree, and a return made: “Property not sold for want of bidders.” In June, 1887, a petition to modify the decree was duly filed, and an order made modifying the decree by including property not described in the original decree. No notice of the latter petition was given to the adverse party. A sale of the property described in the latter decree was thereupon had. On a motion being made to set aside the sale because a sale under the modified decree was unauthorized, held, that the modified decree, so far as it changed the original, was a nullity, and the sale thereunder must be set aside.

Appeal from district court, Gage county; BROADY, Judge.A. H. Babcock, for appellant.

R. S. Bibb, for appellee.

MAXWELL, J.

On the 4th day of February, 1886, a decree of foreclosure and sale was rendered in favor of the plaintiffs in the district court of Gage county, as follows: “Said cause coming on to be heard for final decree upon the pleadings and evidence of the parties plaintiff and defendant, the court finds that there is due plaintiffs from defendant Hannah Noxon the sum of $603, and that the same is the first lien on said real estate mentioned in plaintiff's petition, to-wit, lot 7, in block 9, in the town of Adams, Gage county, Neb., according to the recorded plat thereof. The court further finds that there is due Tootle, Hosea & Co., $956, which is a second lien on said property, still in the name of Hannah Noxon, only after her said deed of general warranty to the defendant Adams Lodge, No. 106, Independent Order of Odd-Fellows, dated June 5, 1884, of that part of said premises described as follows, to-wit: Commencing at a point 40 1-3 feet north of the S. W. corner of lot number 7, of block 9, and from this point 36 1-6 feet north; thence 20 1-3 feet east; then 36 1-6 feet south; thence west to the place of beginning,--and that the judgment of Tootle, Hosea & Co., and that the mortgage of M. E. Smith & Co., are not liens on the interest of said Adams Lodge, No. 106, Independent Order of Odd-Fellows.” On the 10th day of June, 1887, a petition for a further order of said court was filed therein as follows: “Plaintiff further alleges that on, to-wit, the 21st day of June, A. D. 1886, an order of sale was issued out of said district court upon said decree by the clerk thereof, to the sheriff of Gage county, Neb., commanding him to sell the premises, as directed in said decree, according to law; and plaintiff alleges that, as...