Ritchey v. Seeley

Duffie, C. Some time in 1894 John T. Ritchey, one of the plaintiffs in error, and James H. Goodrich purchased 800 acres of land in Hayes county, Nebraska. James E. Seeley, the defendant in error, held a mortgage on the land which Ritchey and Goodrich discharged, giving their own note for $2,650 secured by mortgage in lieu thereof. Foreclosure proceedings were instituted on this mortgage and a decree of foreclosure entered March 24, 1896. A deficiency judgment for $2,050 was ordered by the district court for Hayes county against Ritchey and Goodrich November 23, 1897, but this was not entered of record by the clerk until April 16, 1900,' when the same was ordered journalized. A copy of the order directing the deficiency judgment was filed in the office of the clerk of the district court for Gass county, February 18, 1898, and a transcript of the judgment itself was filed in said county on August 2, 1900. Execution issued on this judgment September 14, 1900, and was returned wholly unsatisfied. For some years previous to these transactions John T. Ritchey was the owner of 240 acres of land in Cass county, which he conveyed to his son Edward on — 122 — March 15, 1897, for the consideration expressed in the deed, of $9,600, and this action was brought by the defendant in error to subject said land to the payment of his deficiency judgment. A decree was entered in favor of the plaintiff below, and the defendants have taken a writ of error to this court complaining that the decree is not supported by the evidence and that the court refused to receive and consider certain evidence which they claim was competent and material. It is first insisted that the district court for Hayes county had no jurisdiction to enter a deficiency judgment against the defendants, and the act of the legislature of 1897, repealing the statute then in force allowing a deficiency judgment to be entered on the foreclosure of a mortgage, is referred to in support of plaintiffs’ contention. We have held in several cases that the repeal of the statute permitting the recovery of deficiency judgments did not affect actions then pending. Thompson v. West, 59 Neb. 677, 49 L. R. A., 337; Hanscom v. Meyer, 61 Neb. 798; Patrick v. National Bank of Commerce, 63 Neb. 200. Some time in 1893 a farm of 120 acres in Cass county, IcnoAvn as the “Walters Farm,” Avas sold under a decree of foreclosure and bid in by John T: Ritchey, as is claimed, for his son, Edward Ritchey, one of. the plaintiffs in error. The sheriff’s deed was made to Edward Ritchey, who took possession and occupied the land, either by himself or his tenants, for three or four years, and until a sale by him to one Henry Bornemeyer, made in 1897. A consideration of this transaction becomes material, for thé reason that it is claimed by the plaintiffs in error that the proceeds of the sale of this farm was paid by Edward to his father on the purchase of the 240-acre farm, the conveyance of which is assailed in this action; while the defendant in error claims that this farm, while standing in- the name of Edward Ritchey, was purchased and paid for by his father, who Avas the real owner thereof and of right entitled to the purchase money. Complaint is made that the court unduly extended the — 123 — privilege of cross-examining John T. Ritchey in relation to the purchase of this farm, to the payment of the consideration, and whose money was used in the payment. The evidence is undisputed that $4,000 in cash paid by Bornemeyer was turned over by Edward Ritchey to his father, and whether this was a bona-fide payment of that amount on a sale of the 240-acre farm, made by the father to his son, or whether the money actually belonged to the father, was a question before the court necessary for its decision, and depending principally upon the evidence of John T. and Edward Ritchey. That either or both of these witnesses should be subjected to a most searching cross-examination relating to that transaction ought not to be questioned. It was a dealing between father and son, which if honestly made ought to be open to the creditors of either in all its details, and neither party can, with any degree of fairness, claim that any light that they can throw upon the transaction ought to be denied by any technical objections made under the guise that such inquiries are not cross-examination under the strict rules applicable to the cross-examination of disinterested witnesses. The court did not unduly extend the privilege of cross-examination in this case. After the conveyance of this 120 acres of land to Edward Ritchey, some litigation took place concerning the.same, in which Edward and his father were parties defendant. In an answer filed by them in that case occurs the following allegation: “That the said John T. Ritchey continued after such sale to occupy and control said land and so continued to do until about the month of February, 1897, when said Ritchey conveyed said land to the defendant Henry Bornemeyer, Sr., who now occupies the same and claims to own it.” John T. Ritchey had testified that he had no interest in this land and that after the conveyance to his son his son had owned,- occupied and controlled the same until the sale to Bornemeyer, and this answer and the above allegation were offered by way of impeachment and contradiction of this testimony. Ritchey testified tha,t at the time he signed — 124 — and verified this answer he did not know it contained the above-quoted paragraph, and called Byron Clark, his attorney who had prepared the same, and offered to show by him that the name John T. Ritchey appearing in the said paragraph was a clerical error made in the preparation thereof, and that the name intended to be used was that of Edward Ritchey. On the objection of the defendant in error, this evidence was excluded, and it is now said in his brief that “the court could as readily determine whether it was intended as meaning Edward Ritchey or John T. Ritchey as could the witness Clark.” Under ordinary circumstances, and with reference to ordinary writings or contracts, this may be true; but here was a pleading prepared by the attorney having full charge of the case, and presumably knowledge obtained from his clients of all the circumstances surrounding it. Clark, who was attorney for both John T. and Edward Ritchey, drew this answer. It is not an uncommon circumstance that an attorney, in preparing a pleading, inadvertently uses the name of one party while intending to name the other. No one has such absolute knowledge of what was intended as the attorney himself. In this case it is undoubtedly true that the evidence is wholly undisputed that Edward Ritchey alone was in possession of the 120-acre farm, either by himself or his tenants, from the time the same was conveyed to him until its sale to Bornemeyer, and his deed to Bornemeyer, which was introduced in evidence, shows conclusively that the clause in the answer above referred to, as follows: • “When said Ritchey conveyed said land to the defendant Henry Bornezneyer, Sr.,” pointed out the Ritchey intended to be named in the answer as Edward Ritchey. Uzzder these -circumstances it may be true that the court could not have been misled by a clerical error in namizzg John T. Ritchey whezi Edward Ritchey was intended. But however that may be, this answer was introduced to contradict the evidence of John T. Ritchey given upon the trial, to the effect that he never had any interest in the land, the court received — 125 — it for that purpose — it was wholly immaterial for any other — and defendant in error now insists, as he probably did in the court below, that it was for the court to say from the mere reading of the answer whether any mistake in drawing it had been made. That the court must determine whether the name “Edward” or “John T.” was intended is undoubtedly true; but the court in determining that question should take into consideration all proper and material evidence upon the issue, and we regard the evidence of Mr. Clark, who prepared the answer, as not only competent, 'but quite material, and evidence which the court should have received and considered. Some time after Ritchey and Goodrich had purchased the Hayes county land Ritchey conveyed his interest therein to Goodrich, who assumed and agreed to pay the mortgage indebtedness thereon. Plaintiffs in error offered to show by John T. Ritchey that at the time he conveyed his 210-acre farm to his son he had no knowledge of this deficiency judgment or any claim made therefor, and did not understand that he was liable upon the debt which had been assumed by Goodrich. This evidence was refused by the court and this ruling is assigned as error. The petition in foreclosure was filed in the district court for Hayes county on August 31, 1895; summons was served on John T. Ritchey and Phoebe Ritchey, his wife, in Cass county, Nebraska, September 11, 1895, by delivering to Phoebe Ritchey a copy of the summons, and on John T. Ritchey by leaving a copy at his usual place of residence. It may well be that this copy left for him never came to his knowledge and that he had no personal knowledge of the existence of the suit or the claim made against him. The notice of an application for a- deficiency judgment was served upon him personally in Cass county on August 16, 1899, more than two years after the conveyance to his son which is attacked in this case. As a matter of law it will be conceded, of course, that a conveyance by Ritchey to Goodrich of the Hayes county land and Goodrich’s assumption of the mortgage thereon did not release Ritchey from — 126 — the payment of said mortgage, and that he was still liable for the debt; but as between himself and Goodrich the latter was primarily liable, and if Goodrich was responsible, in 1897, when Ritchey conveyed his farm to his son, it is a circumstance that ought to be taken into consideration by the court in determining whether such conveyance was fraudulent and made for the purpose of defrauding the creditors of Ritchey. While he may have been liable to Seeley for the payment of this, debt, it is a matter of sósné importance that a solvent third party had agreed to relievfe him of liability therefor, and if this was the only debt for which he was liable at the time it is a matter of great interest in determining the character of his conveyance to his son, whether fraudulent or not, that a third party had assumed and agreed to relieve him from this liability. But Goodrich was one of the defendants against whom execution, issued on the deficiency judgment, had been returned unsatisfied. - At the time of the trial Goodrich certainly was not responsible, and we think that the offer should have gone further and have been to show that he was solvent and able to pay any deficiency that might remain after exhausting the mortgaged premises when the conveyance to EdAvard Ritchey was made. Other matters are discussed in the briefs of counsel, bfit as the case will have to be reversed and a new trial awarded bécause of the error already pointed out it will be unnecessary to discuss them, as they will not probably arise on the second trial of the case. For the reasons above given we recommend that the judgment of the district court be reversed and the case remanded for a new trial. Amis and Albert, 00., concur. By the Oourt: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the case remanded for a new trial. Reversed and remanded. 1. Death of Defendant in Error After Judgment Below: Voluntary Appearance by His Attorneys: Jurisdiction of this Court. Seeley obtained a judgment in the district court, and after his death a petition in error making Seeley the sole party defendant , was filed in this court, and attorneys of this court who were attorneys of record for Seeley in the district court, filed with said petition in error a written statement, signed by them, as attorneys for Seeley, purporting to waive the issuing of summons in error and to enter the voluntary appearance of Seeley in this court. Held, That this court acquired no jurisdiction. 2. Void Judgment. A formal judgment entered in this court upon such attempted voluntary appearance is void, and will be so declared, when, at the same term at which the judgment was entered, the facts are brought to the knowledge of the court. On motion to vacate the proceedings in the supreme court and dismiss the error proceedings, the following opinion was filed May 6, 1903. Motion sustained: Sedgwick, J. James E. Seeley recovered a judgment against John T. Ritchey and Edward Ritchey in the district court for Cass county on the 10th day of January, 1902. On the 25th day of February, 1902, a petition in error ivas filed in this court by the said John T. Ritchey and . Edward Ritchey against the said James E. Seeley to reverse the judgment. No summons in error was issued on this petition, but with the petition in error there was filed in this court a “voluntary appearance” and waiver of the issuance and service of summons in error, which was in writing, and signed by the attorneys who were the attorneys of record for the said James E. Seeley in the district .court. The said Seeley died four days before the petition in error and “voluntary appearance and waiver” were filed in this court. Afterwards the .cause was regularly submitted to this court for determination without any suggestion of the death of the said Seeley, and at the present term of court a judgment was formally entered herein reversing the judgment of the district court and remanding the cause for further proceedings. Afterward the at — 128 — torneys who had represented Mr. Seeley in the lower court, and had assumed to represent him in this court, appeared as friends of the court and filed an objection to the jurisdiction of the court and motion to “vacate, quash, and hold for naught” all the proceedings had in this court in the said case, and “dismiss the said error proceedings.” We think that this motion must be sustained. Proceedings in error in this court to review a judgment of the district court constitute a new action having for its object the reversal of the judgment complained of. “The proceedings in this court are quite analogous to those in ordinary actions. The plaintiff in error is required, within the time limited by the statute, to file a petition showing his right to the relief demanded. He must bring his adversary into court in the usual way and affirmatively establish the material averments of his pleading.” Webster v. City of Hastings, 56 Neb. 245, 246. This was an attempt to begin and prosecute an action against one who was already dead, and such proceedings could not give this court any jurisdiction. The case is to be distinguished from Link v. Reeves, 63 Neb. 424. In that case it was held that service of summons in error upon the attorney of record in the lower court was good service, although the defendant in.error was dead at the time of the service. This was predicated upon the peculiar langxiage of the statute, Avhich provides that “a service on the attorney of record in the original case shall be sufficient,”* but in that case the petition in error Avas filed and the summons issued on iKe same day of and presumably before, the death of the defendant in error. The filing of the petition in error and issuance of summons were valid because; the defendant in error was living at the time, and it was thought that service of summons upon the attorney of record in the lower court was authorized by the express language óf the statute .above quoted. If the action had been begun against Mr. Seeley in his lifetime by filing a petition and issuing — 129 — summons in error, such summons might be served after his death upon his attorney of record in the lower court, and if such summons had been properly served before his death, the action, if relating to real estate, might be revived against his heirs, and if relating to personal property might be revived against his personal representative. Urlau v. Ruhe, 63 Neb. 883.* But the filing of a petition against a dead man is a nullity, and no summons or appearance thereon can give the court any jurisdiction. “When the record shows that no jurisdiction over the defendant has been acquired, the judgment rendered against such defendant is void, and its invalidity may be shown in any action in which it may be called in question.” Fogg v. Ellis, 61 Neb. 829. This judgment having been entered at the present term of court, we have no doubt of the power and duty of this court, upon its attention being called to its want of jurisdiction to render such judgment, to. vacate the same. The motion is sustained. Motion sustained. Footnotes [*] Code of Civil Procedure, sec. 584. [*] This case appears in 89 N. W. 427, as Urlau v. Weeth,