79 Neb. 146 | Neb. | 1907
In November, 1900, in a forcible entry and detainer action the defendant herein obtained judgment against the plaintiff for the restitution of the real estate here in controversy. Plaintiff brings this action, alleging that she is the owner of the property, and asks that defendant be restrained from enforcing its judgment for restitution. She also asks that the title be confirmed in her as against any claim or demand of defendant. No fraud or irregularity was alleged or proved to impeach the judgment for restitution. In Shufeldt v. Gandy, 34 Neb. 32, it was held: “The jurisdiction of courts of equity to set aside judgments at law will be exercised only when it appears that the judgment complained of is unconscionable, and when the party applying had no opportunity to make defense, or was prevented from so doing by accident or the fraud of the opposing party.” In the opinion by Judge Post it is further said: “The rule is well settled that the party seeking relief in equity from a judgment at law must show clearly that the judgment complained of is the result of fraud, accident, or mistake, and not of his own negligence.” In City of Broken Bow v. Broken Bow Water Works Co., 57 Neb. 548, it was held: “To justify an injunction to restrain the enforcement of a judgment it is not sufficient to show that the judgment debtor had a valid defense. It must be shown that he was prevented from interposing it by fraud, mistake, or accident, and without fault on his part.” We know of no reason why the same rule should not apply to judgments for the restitution of real estate.
In the forcible entry and detainer case the defendant
Plaintiff’s contention that she is entitled to a decree quieting title as against any claim or demand of the defendant is based on the theory that the judgment for restitution is a cloud upon her title. To grant her such a decree would be in fact an annulment of the judgment, or an injunction against its enforcement, which, as above shown, cannot be done in this case.
Many errors are assigned in the admission and exclusion of evidence, but as the assigned errors do not pertain to the regularity of the former judgment the court’s rulings were without prejudice, and further discussion is not necessary.
We recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.