Strong v. Irwin

Cobb, J. It appears, that after the verdict and judgment for the plaintiff in the court below, a hearing was had to ascertain the amount of taxes paid by the defendant on the .lands in controversy. Upon such hearing it was found by the court that the said defendant had paid taxes on said premises amounting with interest to the sum of eight hundred and twenty dollars and sixty-seven cents, and a judgment was duly entered declaring the said sum to be a lien upon the said lands, and ordering the plaintiff to pay the .same with interest thereon to the clerk of said court, for the use.of the defendant, within sixty days from the date ■ of said judgment, and in default thereof that said lands .be sold as upon execution, etc. The journal entry of said judgment also recites that [447] the said defendant, by leave of court first had, withdraws his motion theretofore filed for the empaneling of a jury to assess the value of improvements under the occupying claimants act. It also appears, that on the 31st day of December, 1881, and within less than sixty days from the date of said judgment, Jane Y. Irwin, for and on behalf of the said plaintiff, paid to the clerk of said court the said sum of $820.67, together with $2,46 interest thereon, and that on the 2nd day of January, 1882, the said money was by the clerk of said court paid to, and received by, the said defendant. In the case of Buchanan v. Dorsey, 11 Neb., 373, this court held that where a party in ejectment elects to proceed under the “ act for the relief of occupying claimants,” he is estopped from seeking relief by proceedings in error against the judgment in the former or principal action. In the case at bar the defendant in the court below instituted proceedings in that court to recover the amount by him paid for taxes on the land from which he ivas evicted by the judgment in the former or original action, and not only recovered but actually received and appropriated it, and still seeks to attack the judgment by this proceeding in error. The defendant in error having moved to dismiss the petition in error on the above grounds, his motion must be sustained, and the same is hereby'dismissed. Judgment Accordingly.