Johnson v. Samuelson

117 N.W. 470, 82 Neb. 201, 1908 Neb. LEXIS 251

Opinion

Calkins, C.

■ This was an action to quiet title as against the alleged lien of a judgment or order in garnishment. On the 4th day of April, 1900, the defendant, Mrs. Sanmelson, in an action before a justice of the peace, recovered a judgment against one Anderson. Execution being issued on this judgment and returned unsatisfied, the plaintiff, Johnson, was summoned as garnishee, and such proceedings had that the justice entered an order requiring the plaintiff to pay the amount of such judgment into court. Afterwards a transcript of the proceedings before the justice was filed in the office of the clerk of the district court for York county. The plaintiff owning land in said county, claiming that such judgment constituted a cloud upon, his title, brought this action upon the ground that the judgment' was fraudulently obtained, and that the justice was without jurisdiction to make the order. Neither of the defendants resided or were summoned in York county; but summons was issued to the counties where they respectively resided, and was there served upon them. There was a judgment for the plaintiff below, and the defendant appeals.

1. The defendant contends that the order made by the justice requiring the plaintiff to pay the amount of the judgment against Anderson into court was not a judgment within the meaning of the statute (code, secs. 477, 561, 562) making judgments a lien upon the real estate of the judgment debtor. The provisions of the code regulating proceedings against garnishees after judgment and execution returned unsatisfied provide that, in all cases where the garnishee in answering the interrogatories propounded to him shall disclose that he is indebted to the- defendant in execution, the court shall order the garnishee to pay over the amount found to be due from the said garnishee to the defendant in execution, which amount shall be collected by execution as in other cases, as near as may be. Code, sec. 249. No proceeding other or further than the entry of the order is provided for or indicated in the statute, and it is plainly the order to pay over the amount found due that is to be enforced by execution. Section 428 of the code provides that “a judgment is the final de termination of the rights of the parties in an action.” Orders made in pursuance of section 249 are final (Schlueter v. Raymond Bros. & Co., 7 Neb. 281), and may not be collaterally attacked. Wilson v. Burney, 8 Neb. 39; Union Wat. Bank v. Hickey, 34 Neb. 300.

The defendant relies upon the case of Clark v. Foxworthy, 14 Neb. 241, to sustain her position that such order does not amount to a judgment; but we do not think that case supports her contention. It is there held that an order for the payment of money under section 249 of the code can be rightly made and enforced by execution only upon an unqualified admission by the garnishee of a present indebtedness which the execution debtor would be entitled to but for the garnishment. This is a correct statement of the law which should govern the courts in acting upon the disclosure of a garnishee; but it expressly recognizes the power of a court in a proper case to make an order which can be enforced by execution, and has therefore the quality of a judgment. Hollingsworth v. Fitzgerald, 16 Neb. 492; Burlington & M. R. R. Co. v. Chicago Lumber Co., 18 Neb. 303. And in Cobbey v. Wright, 34 Neb. 771, it was held that such a judgment, void for facts extrinsic the record, would be set aside and the apparent lien declared of no effect. We are therefore of the opinion that such an order, when made by the district court or docketed in the office of the clerk of the district court upon a transcript from a justice of the peace, creates an apparent lien upon the real estate of the garnishee in the county in which the. same is docketed.

2. Under the provisions of our statute (Comp. St. 1907, ch. 73, sec. 57), “an action may be brought and prosecuted to final decree, judgment, or order, by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons who claim an adverse estate or interest therein, for the purpose of determining such estate or interest, and quieting the title to said real estate.” That an apparent judgment lien is an interest within the meaning of the word as used in such statute has been recognized in Cobbey v. Wright, supra; Corey v. Schuster, 44 Neb. 269; Smith v. Neufeld, 57 Neb. 660. The question was fully and ably discussed by Sanborn, C. J., in Ormsby v. Ottman, 85 Fed. 492; and the conclusion was reached that the word “interest” is used in the statute in its ordinary signification of including any right, title or estate in or lien upon real estate. We are satisfied that the statute should be so construed. Section 51 of the code provides that actions to recover for any trespass upon or any injury to real estate, and for the recovery of real property or of an estate or interest therein, shall be brought only in the county where such real estate is situated. We think the language of the statute broad enough to include an action to quiet title. Recovery is the obtaining of a thing by the judgment of a court as the result of an action brought for the purpose. Keiny v. Ingraham, 66 Barb. (N. Y.) 250. What a party recovers in an action quia timet is the integrity of his title. Such actions may therefore be properly considered as brought for the recovery of an estate or interest in real property. This question was before this court in Cobbey v. Wright, supra. This case, first reported in 23 Neb. 250 was a personal action brought in Lancaster county against Cobbey, the judgment creditor, and the sheriff of Lancaster county, to enjoin the enforcement of a judgment rendered in Gage county against Wright as garnishee, a transcript of which judgment had been filed and such judgment docketed in Lancaster county. Service of summons was had upon the sheriff in Lancaster county, and upon Cobbey in Gage county, and the action was then voluntarily dismissed as to the sheriff. For the reason that the action was personal, no real estate being mentioned in the petition, this court reversed the judgment of the district court, which had granted an injunction, and remanded the case, with instructions to permit the plaintiff to amend his petition. This the plaintiff attempted to do, but failed to describe the real estate upon which it was claimed the judgment appeared to be a lien, and for that reason the judgment was again reversed and the action dismissed. Cobbey v. Wright, 29 Neb. 274. The plaintiff then brought an action in Lancaster county, describing-land owned by him situate therein, upon which such judgment appeared to be a lien. To this action the defendant Cobbey made a special appearance objecting to . the jurisdiction of the court. This special appearance being overruled, he made no further defense. A judgment being rendered against him, the same was affirmed by this court. Gobbey v. Wright, 34 Neb. 771. The opinion fails to show where Cobbey was summoned or the grounds of his special appearance; but, taking the history of the litigation as it may be gathered from the three opinions referred to, the inference is plain that Cobbey was not served in Lancaster county, and that that fact was probably the ground of his special appearance. But whether this case is to be determined as one of first impression, or is settled by the decision of Cobbey v. Wright, the result must be the same. It is always competent to consider the consequences of a statute in order to arrive at the intention of its framers. To give this statute any other construction would leave the owner of real estate whose title is clouded by apparent liens without remedy in those cases in which the person claiming to own the apparent lien is a nonresident, and, if the language of the statute were less plain than it is, we should still be constrained to hold that the action to quiet title is one in rem, which should be brought in the county in which the land is situated.

3. This brings us to the consideration of the objections which are urged against the validity of the judgment. It appears that the garnishee was first summoned in 1901, and answered concerning his indebtedness, after which disclosure he was told that that was all, and that he could go. No order was entered against him upon this proceeding. He was again summoned in May, 1904, and examined concerning his supposed indebtedness to the judgment debtor, especially upon two notes which he had given to the judgment debtor, or to the judgment debtor’s sister- in-law. He denied any indebtedness, and testified that he had paid the notes, producing them canceled to corroborate his statement in that regard. He was then told that he could go, “unless something more came up.” The justice himself testified that he told the plaintiff ‘‘that he could go now — be excused; and we would call him if any further examination was wanted.” It is agreed by all parties that the plaintiff emphatically denied any indebtedness to the judgment debtor, and there does not appear to have been the slightest ground for the rendition of any order a'gainst him. Nothing was said to him to indicate that the making of such order was in contemplation. It was just about noon when the garnishee was excused, and the justice testified that he transacted other business that afternoon, and about 4 or 5 o’clock in the evening he decided to, and did, enter the order in question. This was on the 24th day of May, 1904, and the plaintiff Johnson testified that he had no knowledge of the entering of such order until about election time, November, 1905. The justice undertakes to deny this, but his testimony is not convincing, and we are satisfied with the finding -of the district court that the plaintiff had no knowledge of the entry of this order until about November, 1905, when it was too late for him to prosecute any direct proceeding to set the same aside. It was shown that the plaintiff was the owner of a large amount of unincumbered’ real estate, and in possession of ample personal property, yet no effort appears to have been made to enforce this order until after the plaintiff had discovered the existence thereof in November, 1905, and complained to the justice about the making thereof. We are satisfied that the plaintiff understood, and had a right to understand, when he was excused by the justice from further attendance unless he should be notified to again ax>pear, that the proceedings were ended, and that by the justice’s failure to either announce his decision or an adjournment of the hearing he lost his jurisdiction. The making of the order afterwards was a constructive fraud, which avoids the judgment. It is not necessary that there should be actual fraud, i. e., that the justice and the attorney for the judgment creditor should have intended to deceive the plaintiff and to keep him in ignorance of the fact of the rendition of such order until it was too late for him to prosecute error or appeal therefrom. It is enough that by their conduct he was lulled into a feeling of ease and safety, and led to understand that the proceeding was ended. Klabunde v. Byron Reed Co., 69 Neb. 126; Arnout v. Chadwick, 74 Neb. 620.

We therefore recommend that the judgment of the district court be affirmed.

Fawcett and Root, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.