74 Neb. 620 | Neb. | 1905
This is an appeal from a decree of the district court for Douglas county, setting aside a former decree rendered in that court. It appears from the pleadings and the evidence that the appellant, defendant herein, on November 7, 1903, filed a petition in equity against the appellee,
The evidence upon controverted questions of fact was adduced through the examination of witnesses in open court. There was a sharp conflict in the testimony of these witnesses, and it is impossible to reconcile their statements upon the theory that they all adhered rigidly to the truth. For that reason, considerable weight will be given to the findings of the trial judge, who saw the witnesses in court, observed their demeanor and deportment while testifying, and who, for that reason, was, by far, better qualified to form a correct conclusion as to the weight to' be given to their testimony. The appellee, as a witness in her own behalf, testified, in substance, that the process in the action instituted against her by appellant was served on the 9th day of November; that on the following day she went to the place of business of the appellant, took the papers to him and asked him what he meant; that he said to her that she.need not pay any attention, that he was a little riled in temper and had consulted a lawyer and told him to go ahead, that she should pay no more attention to it, and that he would throw it out of court; that she handed the papers back to him and did not pay any more attention to it; that she did not know of his having-proceeded with the case and procured a decree until the 8th day of March following; that the decree was entered while she was away on her wedding trip. Her testimony is to some extent sxxstained by facts and circuxxxstances proved at the hearing. The appellant on his own behalf, in sxxbstance, testified that the appellee caxxxe to his store with the papers which had been served on her in the suit instituted by him, and said: “This is a nice thing for a
This brings us to a consideration of the second ground ged for a reversal of the decree, that the court did not find the existence of fraud alleged in the plaintiff’s petition. The finding of‘the district court in that respect is in the following language: “That the plaintiff herein, defendant therein, in the cause in which said decree was entered, was served with summons thereon on the 9th day of November, 1903, and that thereafter, to wit, on the 10th day of November, 1903, this plaintiff, then Edna Howell, took the summons to the plaintiff therein,defendant herein,and then and there, at the place of business of the defendant herein, plaintiff therein, delivered said summons to the defendant herein, plaintiff therein, and at said time the said Chadwick and this plaintiff had a conversation concerning the suit in which the said summons was issued and served, wherein the said Chadwick, by words, acts and conduct, induced this plaintiff to believe that he had commenced said suit while in anger, and that he did not intend to prosecute the same to decree, and that he would not so prosecute said cause, and further induced this plaintiff to believe that he would cause said suit to be dismissed and
It is contended by appellant that, to justify a court of equity in setting aside a former decree and judgment rendered upon proper process and pleadings, it is necessary that there should exist actual fraud, not legal or technical fraud, and that the findings of the district court do not come within that rule. We do not think it important to inquire into the reasons given by the trial court for the conclusion which followed. If the conclusion is. right, then it should be sustained, notwithstanding the fact that the district court mayhaye given a wrong reason. We cannot' agree with counsel, however, in their contention that actual fraud must be shown. In Klabunde v. Byron Reed Co., 69 Neb. 126, 136, it is held that equity will relieve against a judgment or decree on the ground of fraud, actual or constructive, committed by the successful party, or where, from excusable neglect, a defendant has been prevented from interposing a meritorious defense or establishing grounds entitling him to affirmative relief in such action, and Mr. Justice Holcomb, in delivering the
“We do not say there has been any action on the part of defendant or for which it should be held responsible, which worked an actual fraud on the plaintiff’s rights. It is not necessary that we should, nor do we think we would be warranted in so saying. There is, however, sufficient in the record to warrant the inference that he has suffered a wrong which equity will relieve against. There is at least constructive fraud. The plaintiff was lulled into a feeling of ease and safety, because of what he understood and what he was justified in believing was the promise and agreement of the defendant and because of the information received from its counsel, who undertook to represent him also in the litigation.”
The rule there announced is an appropriate one for the case at bar. We hold, therefore, that the findings of the district court were amply sufficient upon which to base the judgment vacating the former decree.
No question is raised in this hearing as to the sufficiency of the showing on the part of the appellee that she had a good and meritorious defense to the action instituted against her by appellant.
We recommend that the judgment of the district court vacating its former decree be affirmed and that the cause be remanded for further proceedings.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court vacating its former decree is affirmed and the cause is remanded for further proceedings.
Affirmed.