Bank of Miller v. Moore

154 N.W. 731, 98 Neb. 843, 1915 Neb. LEXIS 341

• Court: Nebraska Supreme Court
• Decided: October 30, 1915
• Docket: No. 18333
• Status: Published

Opinion

Rose, J.

This is an action in the nature of a creditor’s hill to subject to the payment of a judgment in. favor of plaintiff and against defendant Thomas E. Moore the interest of the latter in a trust estate created by the will of his deceased wife. From a dismissal of the bill, plaintiff has appealed.

In reply to the arguments of plaintiff in favor of granting equitable relief, Moore insists that the bill was properly dismissed, because the judgment pleaded and proved is dormant. This defense seems to be established. The judgment was rendered in the district court for Buffalo county July 7, 1894. It has not been revived therein, and has not been kept alive by the issuance of executions from that court. A transcript of the judgment, however, was filed in the district court for Dawson county, where a revivor was entered October 25,1906. Upon this order plaintiff relies, but it did not give vitality to the dormant judgment, because the district court for Dawson county was without jurisdiction to enter it, the forum for that purpose being tbe court of original jurisdiction. Case Threshing Machine Co. v. Edmisten, 85 Neb. 272. Proof of an enforceable judgment is necessary to relief under tbe creditor’s bill. Holmes v. Webster, ante, p. 105. Since tbe bill was properly dismissed for the reasons stated, it is not necessary to consider other questions presented.

Affirmed.

Sedgwick and Hamer, JJ., not sitting.