111 Neb. 96 | Neb. | 1923
A suit was begun by the defendants in this proceeding on the first of June, 1920, against the plaintiffs herein to restrain and enjoin them from constructing ditches to drain a body of water known as Felts lake situated in Cherry county. The petition charges that, if the defendants (now plaintiffs) completed the work of digging the ditches they were then at work upon, it would cause large volumes of water to be thrown out of their natural courses over the
A demurrer was filed to this petition. The demurrer was sustained and the case dismissed.
Appellants insist, first, that the original, petition to restrain the draining of the lake does not state a cause of action; and, second, that the petition filed by them for a new trial states sufficient grounds, when considered together with the answer tendered, to require the court to set aside the default judgment and allow them in to defend. It has been the general rule that a party will not be permitted to plead the default of his attorney as unavoidable casualty or misfortune which will justify a court in setting aside a judgment rendered at a former term. But there are instances of default by attorneys which seem to create a peculiar hardship, and where the petitioner is not at fault, in which a court will in furtherance of justice and equity set aside such a judgment and permit a defense to be made. Do the facts in this case warrant such relief? The drainage and reclamation of swamps or ponds is a matter advantageous to the state and the public at large. Todd v. York County, 72 Neb. 207; Aldritt v. Fleischauer, 74 Neb. 66. On the other hand, the preservation of large bodies of water which form refuges for wild fowl and afford places for sport and recreation is also a matter of public concern. This has been recognized by the legislature in the enactment of sections 8480-8486, Comp. St. 1922. If it is desired to drain natural or perennial lakes, exceeding 20 acres in extent at low water, application must be made to the department of public works for a permit to do so. ■ If the permit is refused the applicant may appeal to the district court. If the body of water is not a natural or peren
The allegations of the petition as to due diligence are not of the strongest character, and yet we can see that a person residing in a sparsely settled country, about 200 miles away from his attorney, with only long and circuitous railroad communications, may be entitled to greater latitude than one living under different circumstances; and what would be negligence in the one case would not be so in the other.
While the matter of setting aside such a default is within the discretion of the district court, the case is of such an important nature that we believe the issues should be tried. We think the ends of justice will be best subserved by reversing the judgment, and directing the district court to open the former judgment — if the facts alleged in this petition are established by the evidence — and to try the issues of fact in the former case, upon the condition that plaintiffs, within 30 days from the filing hereof, first pay all previous costs in both courts. If they fail to do this, the judgment will stand affirmed.
Reversed on condition.