Howell v. Ross

Sullivan, C. J. This action was brought by Howell against Ross and others to foreclose a real estate mortgage. From a decree in favor of the plaintiff, McManigal, who was made a defendant on the theory that he was in possession of the mortgagéd. premises as a tenant of the mortgagor, has'removed the case to this court by appeal. The only question necessary to be decided is the effect of a former judgment rendered by the district court in a suit brought by Ross [2] against .McManigal in 1896. The issues tried and determined in that suit were, it is conceded, precisely identical with the issues presented by the answer which McManigal filed in this case. It is conceded, too, that the judgment rendered was in favor of Ross, and that it has been reviewed by this court and affirmed. But it is contended that, the action having been brought to quiet title by one out of possession against one in possession, the court had no authority to entertain it or to pronounce a valid judgment. There is not the least merit in this contention. The question of jurisdiction having been raised and litigated in the district and in this court the decision would be binding upon the parties even if it were wrong. Dryden v. Parrotte, 61 Neb. 339. Whether McManigal paid taxes upon the land from 1896 to 1900 is altogether immaterial. The fact is relevant to no issue presented by the pleadings. The judgment is Affirmed.