Hume v. Peterson

Sedgwick, J. About 20 years ago Francis E. Reisdorph began an action in the district court for Douglas county against this defendant, Soren T. Peterson, and afterwards recovered a judgment therein. In July, 1902, Mr. Reisdorph died, and an order was made by the probate court appointing the Continental Trust Company as administrator of the estate. That company began proceedings in the district court for Douglas county to revive the judgment in the name of the administrator. Upon appeal to this court the proceedings were dismissed. Continental Trust Co. v. Peterson, 76 Neb. 411. Afterwards this plaintiff, Ellery R. Hume, was appointed administrator of [349] the estate, and began these proceedings in the district court for Douglas county to revive the judgment in his name as such administrator. Mr. Peterson answered, and alleged that the judgment had been fully satisfied. The court found that the principal part of the judgment had been paid, and that the balance due thereon was $172.60, with interest from the 4th day of October, 1909, and taxed the costs of the proceedings against the defendant. From this finding and judgment both parties have appealed to this court. One David Yan Etten, who was then an attorney at law practicing in Da iglas county, represented Mr. Reisdorph, as such attorney, in procuring the said judgment, and afterwards, Mr. Reisdorph having become a nonresident of the state, and the said Yan Etten having filed several attorney’s liens against the said judgment, Avhich remained unsatisfied, the said Van Etten began an action in the district court for Douglas county against Mr. Reisdorph to recover his fees represented in the said liens, and other alleged claims. In this action he filed an affidavit for attachment, and procured an order of attachment and' garnishment process to be issued against this defendant as a debtor of Reisdorph Tip on the said judgment. Such proceedings were afterwards had in the attachment that on the 18th of November, 1897, an order was entered against this defendant as garnishee to pay into court the “sum of $1,500, except $202.34 paid in 1896, with interest from February 6, 1893, at 7 per cent, per annum.” A judgment was entered in favor of the plaintiff in the case of Van Etten v. Reisdorph on December 16, 1897, for $1,515.38, and in Í902, after the death of Reisdorph, Yan Etten filed an affidavit, and obtained an order of garnishment against this defendant, and on November 18, 1902, the court entered an order that this defendant “as garnishee herein after judgment pay into court the sum of $2,060.77, and $50 probable costs, for the benefit of Yan Etten, as plaintiff and judgment creditor, and the same [350] when paid to be credited in the case of Reisdorph v. Peterson.” Afterwards, in August, 1903, Van Etten filed a receipt acknowledging payment by this defendant of $2,185.10 in full of his judgment. The receipt recited that the costs be paid by this defendant, and the defendant presented receipt for costs paid by him. This payment by the defendant Peterson was allowed by the court as payment upon the principal judgment, and this raises the principal question presented upon this appeal. 1. The first objection is that, the judgment not being dormant, and the action being to revive in the name of the administrator, the court could not in such proceeding consider the defense of payment and satisfaction of the judgment. Section 472 of the code provides: “If either or both the parties die after judgment, and before satisfaction thereof, their representatives, real or personal, or both, as the case may require, may be made parties to the same, in the same manner as is prescribed for reviving actions before judgment.” We cannot find from the abstract that any objection was made to the answer of this defendant to the conditional order of revivor; it appears rather that the parties went to trial upon the issues so presented, and after this extended litigation they ought to abide by the issues which they have presented which have been fully tried and determined by the court. 2. Some objections are made to the preliminary proceedings in obtaining the attachment and garnishment in the suit of Van Etten v. Reisdorph, but these objections are not much discussed, and, so far as we have observed from the abstract, the petition, the affidavit and the service by publication were sufficiently regular to give the court jurisdiction of the garnishee. It is objected that the judgment obtained by Mr. Yan Etten against Reisdorph is void for want of service upon Reisdorph, it being insisted that Mr. Reisdorph as defendant in that action made no appearance therein. We find in the abstract a paper purporting to be the answer of Mr. Reisdorph which was filed in that action upon the [351] proper answer day therein. It is objected that this is a forgery, and there is evidence in the abstract strongly tending to show that, Avhile the signature upon this paper is the signature of Mr. Beisdorph, it was placed by him in an unusual position upon a blank sheet of note paper upon which was afterwards written over las signature what purports to be a general denial in the action then pending. There is, however, no explanation in the record as to how Mr. Beisdorph’s signature to this paper was obtained or in any way explaining the peculiar circumstances of tiie filing of this answer. We think, however, that tliis objection does not necessarily affect the merits of this controversy, nor is It material that no execution was issued upon the judgment obtained by Van Etten against Mr. Beisdorph until after the death of the latter, nor that subsequent garnishment proceedings upon the judgment of Van Etten v. Beisdorph were instituted after Mr. Beisdorph’s death. It appears that, by the original proceedings in attachment and garnishment which were had in 1897, the district court obtained jurisdiction of the subject matter of the indebtedness of this defendant upon the judgment in favor of Beisdorph, and that, in pursuance of those proceedings, this defendant was ordered to pay the amount of that judgment into court to be applied upon Mr. Van Etten’s-claim.^ The court having jurisdiction of the subject matter, this order, when collaterally attacked, sufficiently protected the defendant in paying the money pursuant thereto, although such payment was for so long time delayed. After Mr. Beisdorph had placed his signature upon the paper which was afterwards filed as ids answer, and upon which the court was led to rely as his answer in the case, he still neglected for several years to give any further attention to the matter, and his administrator is now asking for redress, not against the parties who may have deceived and wronged him, but against this defendant who has made payment upon the original judgment relying upon the record and upon the orders of the court. Of course, if this alleged [352] answer is a forgery and was never authorized, directly or indirectly, by Mr. Reisdorph, the judgment, so far.as it attempted to fix the liability of Mr. Reisdorph. in favor of Van Etten, would be without jurisdiction; but this does not affect the jurisdiction of the subject matter of the action, and does not invalidate the order of the court made at the institution of the attachment proceedings, which were never questioned by Mr. Reisdorph, although made more than five years before his death. We think the court did right in allowing this payment by Mr. Peterson as a payment upon the original judgment. 3. The defendant upon his appeal insists that he should have been allowed upon this judgment costs which he paid in the original garnishment proceedings; and certain claims of Van Etten which he paid that were not included in the order of the court in the garnishment proceedings. He insists that these items were liens upon the original judgment in favor of Van Etten, as Reisdorph’s attorney; but the evidence in the abstract, so far as we have been able to ascertain, does not support these claims. Van Etten included his attorney’s liens in his attachment proceedings, and the evidence does not establish that he had other liens upon the judgment that were not allowed and satisfied by those proceedings. The evidence, as shown by the abstract, is somewhat disconnected and unsatisfactory, and we cannot ascertain therefrom that the findings of the district court were so clearly wrong as to require a reversal. The judgment of the district court is Affirmed.