6 Wyo. 518 | Wyo. | 1897
Lead Opinion
On the 30th day of March, 1895, Martin C. Anderson filed his petition in the District Court of Weston County •seeking the vacation of a judgment recovered by the bank of Chadron' against him on the 4th day of April, 1894, in said court in a certain suit wherein said bank was plaintiff, and said Anderson was the defendant. The ground of
Plaintiff in error complains of this judgment, and at the outset attacks the jurisdiction of the court on two-grounds. The first proposition contended for in that connection relates to the legality of the session of court at which the cause was tried and judgment entered. It appears that the trial occurred at a special term of the district court in Weston County; and it is urged that the requirements of the statute concerning the calling of special terms were not complied with. Counsel state in their brief that the term was not called upon any petition therefor by the county commissioners. The statute (Sec. 843 Revised Stat. 1887) provides that it shall be competent, for the district court, upon the written request of a ma
All that the record in this case discloses with respect to this matter is that at the regular October, a. d. 1895, term of said court, on the 29th day of October, 1895, an order was entered of record for a special term of said •court to be held at Newcastle, Weston County, Wyoming, on the 2d day of December, a. d., 1895. Whether the order was made at the request of a majority of the board of county commissioners, or whether the notice thereof was published as provided in See. 843, supra, is not shown. The particular objection now urged does not appear to have been made at the time of trial. The bill of exceptions states that upon the 2d day of December the cause was set down for trial on the 3d day of December over defendant’s objections; and that at the time of. trial defendant objected to the introduction of any testimony, because said court did not have jurisdiction over the subject matter, nor of the person of the defendant, and that the petition does not state a cause of action, which objection was overruled, and an exception preserved. Defendant offered no proof, and nothing is incorporated in the record of this case to negative a request by the commissioners, or the publication of notice. The record before us does not indicate that it contains all the recitals of record, or all files in the court below concerning the calling of such special term. So far as the matter is at all disclosed by the present transcript, the record and files of the district court may clearly and fully show that such request of the commissioners was made, and that the notice was published. The court ordered the special term. Such term was held at the time appointed, and nothing
It is further contended that the court did not acquire jurisdiction of the person of the defendant, and several of the assignments of error are devoted to this objection; the particular grounds urged being that there was no petition filed as basis for service by publication; that the affidavit for constructive service does pot refer to the amended petition, and fails to state facts sufficient to-authorize such service; and that no proof of publication was filed.
The affidavit which is required to authorize service by publication was filed on the 30th day of March, 1895, the same day as that on which the first pleading appearing in the record was filed, which pleading is designated “Amended Petition.” It is stated in the record that, no proof of publication was filed. However, on the 7th day of June, 1895, an answer was filed in said cause on behalf of the defendant. In that answer it is alleged that the defendant appears “in limine,” and shows to the court that it has no jurisdiction of the action nor of the person of the defendant for three specified reasons; viz., 1. Because the action is not one brought under chapter six, division four, of the Code of Civil Procedure, but is in effect and in fact .a petition for new trial; 2. Because the petition is not based on the ground of fraud on the part of the successful party procuring the judgment;, 3. Because no affidavit for publication containing a statement of facts required by the statute was filed. Ño objection on account of • the failure to file proof of publication was offered in any manner at or prior to the trial. The answer, repeating that defendant appears ‘ £ in limine, ’ ’ then proceeds to meet the allegations of the petition, admitting certain of its averments, denying all not so-admitted, and making other allegations, to which a reply was subsequently filed by the plaintiff Anderson*
It is further contended that the petition does not state-facts sufficient to constitute a cause of action. The allegations of the petition, stated as briefly and in as general terms as we feel at liberty to state them, are, that the prevailing party, the bank of Chadron, by its agents and attorneys, was guilty of misconduct and fraud in obtaining the judgment sought to be vacated; that the attorney employed by the plaintiff in collusion and conspiracy with the attorney for the defendant fraudulently agreed to let judgment go against this plaintiff by consent; that the notes upon which the judgment was obtained in the county court of Dawes .County, Nebraska, were executed by plaintiff to Spargur, Fisher & Me Cann, a firm of attorneys at Chadron, Nebraska, without consideration, and upon the strength, or upon being induced to so execute them by means of false and fraudulent representations made by said attorneys to him to the effect that he was indebted to certain persons who had formerly been creditors of a partnership of which he had been a member, when in truth and fact he was not so indebted in any sum whatever, as all the claims of said creditors had been settled in full by the receiver of said partnership. That within two days after giving said notes the plaintiff notified the cashier of the bank of Chadron that said notes, were void and had been given without consideration, which notice was so given to the bank before it had acquired' any interest in said notes. That immediately
Before a judgment can be vacated as provided by chapter 5 of the Code of Civil Procedure, in which chapter are ^to be found the sections above cited, upon petition of the defendant to the action wherein the judgment was entered, the court must determine that there is good statutory cause for the vacation of such judgment, and that there exists a valid defense to the action.
In our opinion the allegations of the petition are sufficient, if the facts are established, to authorize a finding favorable to the petitioner upon both propositions, and that the petition therefore does- state facts sufficient to constitute a cause of action.
With reference to the collateral attack upon the judgment of the county court of Dawes County, Nebraska, the petition charges want of jurisdiction of the person; and that can always be questioned in a suit upon a judgment of a sister State. There has been much discussion
Prior to the trial, but on the same day the plaintiff, Anderson, by his attorneys, applied to the court for leave to file a supplemental petition; to this an objection was interposed on the ground that the matter sought to be pleaded was immaterial, and not competent to be proved, and was tendered without notice to defendant, and without an order for pleading. The facts alleged in the supplemental petition were not supplemental matters. Sec. 2506 of the JRev. Stat. authorizes the filing of a supplemental petition by permission of the court or judge upon such terms as such court or judge may prescribe, alleging facts material to the case which occurred subsequent to the filing of the former petition. The facts set forth in the pleading which is denominated a supplemental petition all occurred prior to the filing of the former petition, but it is stated in the pleading that they were not known to the plaintiff until afterward. The allegations would be proper in an amended petition, and such allegations rather than the name given to the pleading should control the force and effect to be given to it. No substantial right can be affected by the misnomer, and in view of the liberal provisions of our statute concerning amendments, the allowance of the filing of said paper, although styled ‘‘supplemental” instead of “amended,” does not amount to such an error as to require a reversal of the judgment
During the trial it was discovered that the .judgment rendered by the county court of Dawes County, Nebraska, was for a greater sum than was indorsed upon the summons and in excess of the amount which would be actually due upon the notes sued on, giving them full force and effect; and leave was granted plaintiff to file an amended petition setting forth those facts to correspond with the proof. While there may be grave doubt if such an error disposed of the jurisdiction of the court, and we by no means hold that it would, the fact itself was at least competent, in connection with all the other circumstances, upon the issue of fraud in the procurement of the judgment. We, therefore, do not perceive any error in permitting the amendment to the petition in that regard.
It is further urged that the findings and judgment of the court are not sustained by the evidence. We might well refuse to consider the assignments of error based upon the evidence, inasmuch as the motion for new trial is not embraced in the bill of exceptions, the necessity for which has been so frequently announced by this court, and is shown by our rule thirteen, although no objection to the manner of presenting the motion in the record is made by counsel for defendant in error. Nevertheless, upon an inspection of the evidence we are of the opinion that it is sufficient to support the finding of the court that the plaintiff had a valid defense to the former action, the judgment wherein was sought to be vacated. The evidence tends at least to show that fraud had been practiced in procuring the Nebraska judgment upon the notes. An affirmance of the judgment of the district court in the present cause will result in a new trial of the former action, upon which trial the evidence already adduced will be again used and must then receive consideration. We do not deem it advisable to discuss the same in detail, nor at all in respect to a mere question of fact. In respect, however, to the effect of the judgment of the district court
The impregnable character of the county court judgment, when sued on in this State, is strongly urged upon our attention, and counsel for plaintiff in error rests his case almost entirely upon the proposition that such judgment must be accepted without question in the courts of this State. We are inclined to the opinion that the evidence shows jurisdiction of the subject matter and of the person of Anderson in that court, but its judgment may nevertheless be impeached for fraud, and we are inclined to view the various irregularities connected with the exercise of its jurisdiction in that court as matters affecting the charge of fraud, rather than as being jurisdictional matters. There is, however, another Nebraska judgment in this case to which the same faith and credit must be given as to the one upon which plaintiff in error relies. The record of the decree of the district court enjoining the collection or transfer of the notes does not show the date when it was rendered, except by a filing mark of the clerk, nor the date when the su'it was commenced, but Mr. Fisher, counsel for plaintiff in error, and a party to the suit in the district court, was a witness upon the trial of this case, and testified that the injunction suit was commenced on or about July 20, 1888, and that the decree was rendered June 23, 1892; and as to the date of the decree, the filing mark upon the back of the copy of the decree brought into the record agrees with the statement of the witness. The suit in the county court upon the notes was commenced in August, 1891, and judgment was rendered therein on the 8th day of March, 1892. The subject of the suit in the district court was the same notes upon which suit was brought in the county court, but in the former the cancellation of the notes and an injunction against their collection and transfer was sought, and in the latter, the defendants in the former, one of them as party, the other as attorney, sought judgment upon the
The pleadings in the suit brought in the district court of Dawes County are not found in the record, but the language of the referee’s report and the decree in that cause indicates that the purpose of the suit was to secure the cancellation of the notes in question, and to restrain their transfer and collection. That suit was brought long anterior to the action in the county court, and the maker, the original payeés, and the bank of Chadron, the alleged holder, were all parties. The said district court, therefore, duly acquired jurisdiction, as the decree recites the appearance of all the parties, to determine the relative rights of said parties in and to such notes, and the liability of Anderson thereon to either of the other parties. In Tay
The judgment of the county court was rendered upon the notes which were the subject of the action previously brought and then still pending and undetermined in the district court of the same county. It is not essential that such judgment of the county court should be held as void; it is sufficient, and to that extent only do we care to go, that the judgment of the district court must prevail. For this reason, if no other, the defendant in error, in the suit brought upon the judgment of the county court, is at liberty to deny, and establish by proof if possible, that the bank had not acquired any interest as against him in the notes prior to the commencement of the suit in which the injunction was allowed. This question can not be said to have been in issue in the action before the county court. The judgment in that court was rendered on default. The petition alleged that the notes were executed to the original payees to cover an indebtedness to them due from the maker, and made no reference whatever to the pending suit in the district court. The decree awarding the in
The judgment is affirmed.
Rehearing
ON PETITION FOR REHEARING.
This petition for rehearing was filed after the expiration of the time allowed by Rule 23, and after defendant in error had become entitled, under Rule 26, to a special mandate to the trial court to enforce the judgment. These rules have the force of statutory law, and parties have a right to reply upon them as such for purposes of terminating litigation, and for other purposes.
This is fully discussed and the authorities upon the point reviewed in Cronkhite v. Bothwell, 3 Wyo., 739. It is there intimated, however, that where compliance with the rules is prevented by an “ overwhelming necessity,” this court may have power to grant appropriate relief. No such showing is made in that case or in this case, or in any reported case, I believe, in this State.
A motion to strike this petition for rehearing from the files has been filed. This motion can not be considered now because the plaintiff in error has not had notice of the motion. Neither is the petition for rehearing properly before us for consideration on its merits, for two reasons:
1. The reason already given that it was not filed in time.
2. It is not accompanied by any brief.
The petition for rehearing is an ex parte proceeding, and the argument in support of it is by brief only unless oral argument be requested by the court. (See Rule 23 )
We have, however, glanced at the petition for rehearing to ascertain if possibly a case of failure of justice be
Rehearing denied.