Ward v. Urmson

• Decision Date: 15 May 1894
• Citation: 40 Neb. 695,59 N.W. 97
• Parties: WARD v. URMSON.
• Court: Nebraska Supreme Court

40 Neb. 695

59 N.W. 97

WARD

v.URMSON.

Supreme Court of Nebraska.

May 15, 1894.

Syllabus by the Court.

1. This court will not review on appeal or error a decree rendered by the district court, prior to the formal entry of such decree upon the journal of the trial court.

2. A memorandum for a decree made by a judge of the district court upon his calendar will not authorize a review of the case in this court before such decree is extended in due form and apt language upon the court journal.

Error to district court, Frontier county; Cochran, Judge.

Action by Burton & Harvey against John J. Urmson and wife, M. T. Ward and others, to foreclose a mortgage. Said Ward filed a cross petition, claiming a judgment lien on the mortgaged premises. To a decree finding in favor of said Urmson against the existence of such lien said Ward brings error. Dismissed.James A. Williams and R. M. Snavely, for plaintiff in error.

Sands & Cheney and Robert Ryan, for defendant in error.

NORVAL, C. J.

This action was brought in the court below by Burton & Harvey to foreclose a mortgage upon the N. E. 1/4 of section 8, township 8, range 27 W., executed by John J. Urmson and wife. The mortgagors, M. T. Ward and others, were made defendants to the suit. Ward filed a cross petition, setting up the recovery of a judgment by Tyra Nelson in the county court of Frontier county against the said John J. Urmson for the sum of $167.50 and costs, the filing of the transcript thereof in the district court of said county, the assignment to Ward, and praying that the same be declared a lien upon said premises, subject to said mortgage. To this cross petition John J. Urmson answered, denying that said judgment was a lien upon the premises, alleging that he acquired title to said land under and in pursuance of the homestead laws of the United States, and “that the debt for which said judgment was rendered, and out of which said judgment grew, was incurred before patent for said land was issued to the defendant by the government of the United States, in whom the title in and to said premises was before the entry of said premises as aforesaid by this defendant.” No reply was filed to this answer. The district court entered a decree foreclosing the mortgage, without deciding whether said judgment was a lien upon the premises. Ward prosecutes a petition in error, alleging that the lower court erred in finding and decreeing that said judgment was not a lien upon the premises. From the stipulation of the parties contained in the bill of exceptions it appears that the land in question was entered under the homestead laws of the United States by John J. Urmson; that he duly made final proof on September 14, 1885, and received the usual receiver receipt; that on July 11, 1887, the debt for which said judgment was rendered was contracted by said Urmson subsequent to the making of the final proof, but prior to the date of the patent for said lands issued to Urmson by the United States.

The only point urged by counsel for plaintiff in error is whether the lands acquired from the United States under the act of congress entitled “An act to secure homesteads to actual settlers on the public domain,” approved May 20, 1862, are liable to sale on execution to satisfy an ordinary judgment obtained for a debt contracted by the patentee before the issue of the patent, but after the date of the final receiver's receipt. We are precluded from now entering upon a discussion of the question, for the reason we have no competent evidence before us to show that the same was adjudicated in the court below. In the transcript prepared for this court is a copy of that portion of the journal kept by the clerk of the district court containing the decree of the foreclosure of the mortgage. But this decree does not in any manner determine whether the judgment is a lien upon the premises. Attached to and made a part of the bill of exceptions filed herein is a copy of the entry made in the case by the district judge on the trial docket, which reads as follows: “Nov. 25, '90. Trial to court on petition, pleadings, and the ev. The court finds that the judgment of Tyra Nelson in sum of $167 and $7.55 costs, obtained against John J. Urmson, and assigned to M. T. Ward, was obtained upon a debt by entryman, John J. Urmson, who entered land mortgaged under provisions of U. S. homestead laws,...