Tarkington v. Link

• Decision Date: 12 November 1889
• Citation: 44 N.W. 35,27 Neb. 826
• Parties: ELIZA K. TARKINGTON v. HARVEY LINK
• Court: Nebraska Supreme Court

44 N.W. 35

27 Neb. 826

ELIZA K. TARKINGTON v. HARVEY LINK

Supreme Court of Nebraska

November 12, 1889

ERROR to the district court for Douglas county. Tried below before WAKELEY, J.

AFFIRMED.

W. J Connell, for plaintiff in error.

James W. Savage, for defendant in error.

OPINION

MAXWELL, J.

Prior to the year 1883 the plaintiff recovered a judgment in ejectment for the possession of certain real estate in Douglas county. The case was brought on error into this court, where on motion the proceedings in error were dismissed. (Hollenbeck v. Tarkington, 14 Neb. 430, 16 N.W. 472.) Upon the issuing of a mandate to the district court a writ of restitution was duly issued by that court against Hollenbeck and one Link, who was not made a defendant, and placed in the hands of the sheriff of that county. Thereupon Link filed a petition to intervene in the case, as follows:

"Harvey Link, being duly sworn, says that the decree heretofore made in this case was affirmed by the supreme court, and upon the filing of the mandate in this court a writ of restitution has been directed to the sheriff of this county; that under said writ the said sheriff now proposes and threatens to evict this deponent from the premises in the petition in this cause described.

"And deponent further says that he is the owner and entitled to the possession of the said premises; that he was not a party to the above suit and his title was not adjudicated therein; that he has had possession of said premises ever since the 13th day of June, 1870; that his title is in no way derived from the said Hollenbeck, and his possession of the said premises has been alike adverse to the plaintiff and the said defendant; that his possession has been absolutely without collusion with said Hollenbeck, or with any of his attorneys in any way, directly or indirectly; that in case the sheriff shall evict him from said premises, he will be deprived of his day in court and have no opportunity to maintain his title.

"And deponent, in support of his allegations above made, refers to the various deeds on record in this county and the proceedings of this court."

This was supported by a large number of affidavits in favor of and against said application, and on the hearing on the 20th day of August, 1887, the court made an order denying the petition of said Link. Afterwards a motion to reopen, vacate, and set aside the order was sustained, and on the 21st day of April, 1888, the court entered an order as follows:

"On this day came on to be heard the motion of Harvey Link, that the order in the above entitled cause, made on the 20th day of August, 1887, be set aside, the same having been heretofore argued and taken under advisement.

"Whereupon it is now ordered that said motion be sustained and that the said order be and hereby is set aside and vacated, to which the plaintiff excepts.

"And it is further ordered that the said plaintiff have until Saturday morning next to file affidavits in reply to those filed by said Link herein; and that the motion of the plaintiff filed June 16, 1887, to vacate the...