53 Neb. 450 | Neb. | 1898
The Kansas Manufacturing Company recovered several money judgments against Ancil L. Funk, on which executions were issued, which were returned by the sheriff of Lancaster county nulla Iona. Alias executions were thereupon issued on said judgments, and levies were made thereunder upon certain real estate as the property of Funk, which prior thereto he had conveyed to his brother-in-law T. W. Thornburg, who likewise conveyed it to Laura F. Funk, the Avife of said judgment debtor. Subsequently, and after the levy of said executions, the Kansas Manufacturing Company commenced a suit in the court below, in the nature of a creditor’s bill, against Ancil L. Funk, Laura F. Funk, and T. W. Thornburg, to
The evidence adduced tended to prove that Mrs. Funk had a meritorious defense against the creditor’s bill. Therefore we are limited in our investigation to the question whether sufficient cause existed for setting aside and vacating the decree which canceled the conveyances to the real estate in controversy. Relief was asked upon two grounds: First — That her attorneys failed to properly look after her interest in the action or to notify her of the time when the cause wofild be reached for trial; and second — that she was misled as to the time of the trial by an agreement made with the Kansas Manufacturing Company that the cause should not be heard during the April term, 1894, of the district court. Assuming, without deciding the point, or intimating that the facts warrant such an inference, that Mrs. Funk’s at
Plaintiff and her husband on and prior to April 10, 1894, resided in the city of Lincoln and on that date they moved to Alcovia, Wyoming. There were then pending two suits in the district court of Lancaster county in favor of the Kansas Manufacturing Company, one. against Ancil L. Funk for the recovery of a money judgment, and the other was the creditor’s bill already mentioned. Ancil L. Funk testified that about a week prior to the removal of himself and wife to Wyoming he interviewed H. H. Wilson, one of the attorneys for the plaintiff in the last named suit, as regards the trial thereof, and his version of the conversation which then took place is here reproduced in his own language: “I met Mr. Wilson near the corner of Eleventh and O and told him that I was going to Wyoming before long, and would necessarily be some distance from the railroad, and I would like to be sure that this case was put off until fall. He said that he was not particular about the equity case, but the law case he should press — he had put that off and would not put it off again — but the equity case he was not particular about, and would- not take any undue advantage of my absence, or my wife’s.” Mr. Funk further testified that had it not been for this conversation and the reliance placed thereon, he and his wife would have attended the trial. H. H. Wilson testi
Eeauorsed and dismissed.
