
    Durland Trust Company, appellant, v. Howell M. Uttley et al., appellees.
    Filed April 19, 1919.
    No. 20100.
    1. Judgment: Motion to Vacate: Payment. After a judgment has been paid in full and the cause dismissed, a motion to set it aside presents no issue.
    2. Appeal: Theory of Case. A motion that states sufficient facts for a petition for damages on account of fraud will be regarded as a petition for that purpose if the parties appear and try the issue presented.
    3. Appearance. The district court has jurisdiction of actions for fraud, and may obtain jurisdiction of the person of the defendant if he appears and asks a dismissal wholly upon untenable grounds.
    4. Pleading: Sufficiency After Judgment. If a pleading alleges facts which entitle the pleader to relief, and there is a complete trial of the issue which it was plainly intended to present, without objection which would challenge technical defects in the pleading, such pleading will be regarded sufficient after judgment.
    5. Appeal: Affirmance. When a common-law action is tried to the court without demand for jury, the findings and judgment upon substantially conflicting evidence will not be reversed upon appeal unless it is clearly wrong.
    •Appeal from the district court for Holt county: William H. Westover, Judge.'
    
      Affirmed.
    
    
      Mapes & McFarland, for appellant.
    
      E. M. Uttley, contra.
    
   Sedgwick, J.

The plaintiff recovered a judgment against these defendants in the district court for Holt county foreclosing a real estate mortgage. An order of sale was issued on the judgment. Sale was made and duly reported to the court. Objections to the confirmation were filed, and, before the sale was confirmed, the judgment was paid in full and the cause formally dismissed upon the record. Afterwards the defendants filed a motion to reinstate the case upon the docket, and to set aside and cancel the decree and judgment “for fraud practiced by the plaintiff in said actioh upon the court as well as upon these defendants.” The motion closed with a prayer that upon the final hearing the defendants may have judgment against the plaintiff for “the sum of $274.99, the amount by them so wrongfully and unlawfully received and collected. ’ ’

The motion states no ground for relief, unless it may be regarded as a petition for damages on account of the alleged frauds, and for that purpose, of course, fails to state a cause of action in not alleging when the frauds were discovered and why they were not sooner brought to the attention of the court. When the defendants, who were virtually the plaintiffs in the proceeding, offered their evidence, the plaintiff objected to proceeding with the trial “for the reason the court has no jurisdiction over the person of the plaintiff or over the subject-matter.” It was then stipulated that the foregoing objection should apply to all of the evidence, and the trial proceeded. The court, of course, had jurisdiction of the action for fraud, and defendants had already taken, such steps as amounted to an appearance. The whole proceeding is a peculiar one, and we cannot say that, upon the issues actually submitted to and tried by the court, the evidence is insufficient to support the findings of the trial court.

The judgment of the district court is therefore

Aekgrmed.  