Schmid v. Schmid. FREDERICK SCHMID V. REGINA SCHMID. FILED SEPTEMBER 20, 1893. No. 4531. 1. Review: ERROR PROCEEDINGS: MOTION FOR NEW TRIAL. To obtain a review upon error of matters occurring upon a trial in the district court, a motion for a new trial must have been made in that court, but, in the absence of such a motion, this court will examine the question as to whether the petition states a cause of action. 2. Petition for Reconveyance of Land. A petition alleging an agreement within the statute of frauds, but not alleging that such agreement was in writing, is sufficient after judgment. ERROR from the district court of Saunders county. Tried below before MARSHALL, J. T. B. Wilson and Lamb, Ricketts & Wilson, for plaintiff in error. George I. Wright and M. B. Reese, contra. IRVINE, C. This case was originally brought into this court by appeal, but the transcript not having been filed within the period prescribed by law, upon motion the appeal was dismissed, and the appellant given leave to file a petition in error. No motion for a new trial was made in the trial court, and that fact precludes us from an examination of any of the questions raised, except those which arise upon the assignment of error that the petition does not state facts sufficient to constitute a cause of action. The petition alleges that the plaintiff Regina Schmid, on August 23, 1887, was the owner of certain land described in the petition, and that the defendant Frederick Schmid, the son of Regina, on said day, by the use of certain representations unnecessary to here set forth, but which are alleged to have been 37 629 39 839 37 629 46 859 37 629 47 797 37 629 158 120 Schmid v. Schmid. * * false and fraudulent, induced Regina to convey to him said lands, "upon the express understanding and agreement that said Frederick Schmid should thereafter, at any time, upon request by the said Regina Schmid, her heirs, legal representatives, or assigns, reconvey said premises to said Regina Schmid, her heirs or assigns, or to such person or persons as she should designate, and should hold, use, and enjoy said premises * in trust for the said Regina Schmid, her heirs and assigns; the said conveyance of said plaintiff Regina Schmid to the said Frederick Schmid being for no consideration whatever except the trust aforesaid." It is alleged further that defendant now denies the trust. After stating certain other facts, possibly sufficient in themselves to justify the relief asked, the plaintiff prays for a reconveyance and for other relief. A decree was rendered substantially in accordance with the prayer of the petition. At this stage of the case the question of the sufficiency of the petition being now for the first time raised, the petition should receive a very liberal construction and every intendment should be in its favor. The requirement of a writing signed by the person to be charged, in order to evidence an express trust in land, or create or transfer any interest therein, being a purely statutory requirement, it was not necessary at common law to plead the existence of such a writing. (Stephen, Pleading, 330.) The petition in the portion quoted contains sufficient averments to establish a trust, unless the Code has changed the common law rule so as to require in pleading a contract within the statute of frauds, the averments that the contract was in writing and was signed by the party to be charged. Safe pleading under the Code undoubtedly demands these averments, but their absence affects only the certainty of the pleading, and where the petition substantially pleads the agreement, and is silent on this point, the objection should be made by motion. The omission of such State, ex rel. Austrian, Wise & Co., v. Duncan. averments does not invalidate a judgment rendered upon the petition. (Maxwell, Code Pleading, 15.) We think, therefore, that in this respect, if in no other, the petition states a cause of action, and that being the only question open for consideration, the judgment is THE other commissioners concur. AFFIRMED. STATE OF NEBRASKA, EX REL. AUSTRIAN, WISE & FILED SEPTEMBER 20, 1893. No. 3830. 1. Attachment: GARNISHMENT: AFFIDAVIT. In order to found proceedings in garnishment in aid of an attachment, it is necessary that the affidavit required by law be filed in the court issuing the process before notice is served upon the garnishee. 2. 3. 4. : .: JURISDICTION: SPECIAL APPEARANCE. In order that proceedings in garnishment may be pleaded against third parties, it must affirmatively appear from the record that the steps were taken necessary to confer jurisdiction, and a voluntary appearance and answer by the garnishee does not supply the place of such jurisdictional proceedings. : PRIORITIES. Under section 946 of the Code, where several attachments are levied upon the same property, or the same persons are made garnishees in several cases, the justice issuing the order first served may, upon motion of any of the plaintiffs, determine the amounts and priorities of the several attachments; and he has authority to do this as well when the validity of some of the attachments or garnishments is disputed as when their validity is unquestioned. : A DETERMINATION OF PRIORITIES So had constitutes an adjudication which cannot be collaterally attacked. 5. County Courts: POWER TO VACATE JUDGMENTS. The county court, acting within its special jurisdiction, has power to vacate 6. 7. 8. State, ex rel. Austrian, Wise & Co., v. Duncan. judgments and final orders during the term at which they were rendered. In cases within the jurisdiction of a justice of the peace a county judge possesses only the powers of a justice, and can only vacate judgments and final orders in cases where justices are expressly authorized so to do. A county court acting within its special jurisdiction may vacate its judgments or final orders for irregularity in obtaining the same upon proceedings had in pursuance of sections 602 to 610, inclusive, of the Code. : : VALIDITY OF ORDER: COLLATERAL ATTACK. An order vacating such judgment or final order is not void for want of a finding that the applicant had a valid defense or cause of action. The want of such finding renders the proceedings, at most, only irregular or erroneous, and they are not on that account open to collateral attack. ORIGINAL application for mandamus. Wigton & Whitham, for relators. D. A. Holmes, John R. Hays, and Mahoney, Minahan & Smyth, contra. IRVINE C. This is an original application for mandamus to require the respondent, county judge of Madison county, to pay to the relators the amount of a judgment recovered by relators out of certain moneys paid into court in pursuance of garnishment proceedings and alleged to be properly applicable to the satisfaction of relators' judgment. There was an order of reference and a report made by the referee in favor of the relators, and the case now comes up upon the relators' motion for judgment upon the report and the respondent's exceptions to the report. Upon December 1, 1888, suits were begun in the county court of Madison county by Kaminer, Prinz & Co., J. T. Robinson Notion Company, Frankenthal, Freudenthal & Co., W. V. Morse & Co., and Turner & Jay against Corn State, ex rel. Austrian, Wise & Co., v. Duncan. bleth & Pelzer, and attachment proceedings were instituted in each case. Upon the part of the respondent there was offered in evidence before the referee affidavits entitled in each case, as follows: "D. A. Holmes, one of the attorneys for the plaintiff above named, being first duly sworn, deposes and says that he has good reason to believe, and does believe, that the Norfolk National Bank has property of the defendant, towit, a stock of merchandise, in its custody in this county. "D. A. HOLMES. "Subscribed in my presence and sworn to before me this GEORGE M. BEELS, 1st day of December, 1888. "Justice of the Peace." These affidavits were all objected to as incompetent. The copies appearing in the bill of exceptions show no certificate of filing, but from some arguments in the brief it may be inferred that they were delivered to the officer with the order of attachment upon December 1. They were not filed in court until May 11, 1889. The officer returned the orders of attachment showing that upon December 1 he served the Norfolk National Bank as garnishee in each of said cases. Upon December 3 the relators commenced the action resulting in the proceedings upon which this case is based; they also instituted attachment proceedings, filed an affidavit for garnishment against the Norfolk National Bank, R. E. Levy, and John R. Hays. Upon December 4 notice of garnishment was served. These proceedings are admitted to be regular in every respect. Upon January 14, 1889, John R. Hays filed a written answer, verified by his oath, a single paper bearing the titles of all of the cases, and proceeding as follows: "Comes now John R. Hays, and for answer in garnishment in the above entitled causes of action, and in each of them, shows the court as follows: That on December 1, 1888, the defendants Cornbleth & Pelzer made and executed a chattel mortgage to the Norfolk National Bank, of Norfolk, |