Thies v. Thies

Nebraska Supreme Court

Thies v. Thies

177 N.W. 168, 104 Neb. 248, 1920 Neb. LEXIS 144

CourtNebraska Supreme Court

DecidedMarch 13, 1920

DocketNo. 20314

StatusPublished

Cited by2 cases

This text of 177 N.W. 168 (Thies v. Thies) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thies v. Thies, 177 N.W. 168, 104 Neb. 248, 1920 Neb. LEXIS 144 (Neb. 1920).

Pincite

Opinion

Morrissey, C. J.

Plaintiff obtained a decree of separate maintenance against her husband in the district, court for Douglas county. She then brought suit to set aside as fraudulent certain conveyances of real estate in Keith county made by the husband to his sister and to his attorneys. The petition recites the preliminary steps in their chronological order and sets out the decree of separate maintenance. It alleges that an execution had been issued in Douglas county and returned milla-bona. It does not allege that a transcript of the judgment had been filed in Keith county, or that any levy had been made upon the land. Defendants filed a general demurrer to the petition. The demurrer was overruled, the cause proceeded to trial, and judgment was entered in favor of plaintiff.

A number of assignments of error are contained in the brief. The first, and it seems to us the controlling one, is the ruling on the demurrer. May plaintiff maintain this action without alleging and proving that a transcript of her judgment has been filed in the county where the land is situated, or that a' lien has actually attached to the land ? There is an able discussion of this question in Wadsworth v. Schisselbauer, 32 Minn. 84. The language of this opinion was copied, and its reasoning followed, by this court in State Bank of Ceresco v. Belk, 68 Neb. 517. It would serve no useful purpose to repeat it here, but the rule there enunciated is supported by the weight of authority.

Under this rule, plaintiff was bound to docket a transcript of her judgment in the county where the land is situated before she could maintain an action of this character. Without a lien upon the land, there is no basis [250]*250for the suit. 2 Moore, Fraudulent Conveyances, 803, sec 54. See, also, note to Ziska v. Ziska, 23 L. R. A. n. s. 1 (20 Okla. 634).

It was error to overrule the demurrer. The judgment is. therefore reversed and the cause remanded.

Reversed.

Day, J., not sitting.

Free access — add to your briefcase to read the full text and ask questions with AI

Morrissey, C. J.

Plaintiff obtained a decree of separate maintenance against her husband in the district, court for Douglas county. She then brought suit to set aside as fraudulent certain conveyances of real estate in Keith county made by the husband to his sister and to his attorneys. The petition recites the preliminary steps in their chronological order and sets out the decree of separate maintenance. It alleges that an execution had been issued in Douglas county and returned milla-bona. It does not allege that a transcript of the judgment had been filed in Keith county, or that any levy had been made upon the land. Defendants filed a general demurrer to the petition. The demurrer was overruled, the cause proceeded to trial, and judgment was entered in favor of plaintiff.

A number of assignments of error are contained in the brief. The first, and it seems to us the controlling one, is the ruling on the demurrer. May plaintiff maintain this action without alleging and proving that a transcript of her judgment has been filed in the county where the land is situated, or that a' lien has actually attached to the land ? There is an able discussion of this question in Wadsworth v. Schisselbauer, 32 Minn. 84. The language of this opinion was copied, and its reasoning followed, by this court in State Bank of Ceresco v. Belk, 68 Neb. 517. It would serve no useful purpose to repeat it here, but the rule there enunciated is supported by the weight of authority.

Under this rule, plaintiff was bound to docket a transcript of her judgment in the county where the land is situated before she could maintain an action of this character. Without a lien upon the land, there is no basis [250]*250for the suit. 2 Moore, Fraudulent Conveyances, 803, sec 54. See, also, note to Ziska v. Ziska, 23 L. R. A. n. s. 1 (20 Okla. 634).

It was error to overrule the demurrer. The judgment is. therefore reversed and the cause remanded.

Reversed.

Day, J., not sitting.

Cite This Page — Counsel Stack

Bluebook (online)

177 N.W. 168, 104 Neb. 248, 1920 Neb. LEXIS 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thies-v-thies-neb-1920.

Opinion

Related

Cite This Page — Counsel Stack