Horn v. Queen, 5 Neb. 472

Horn v. Queen

5 Neb. 472 | Neb. | 1877

Gantt, J.

It appears from the record that, on the 18th day of January, 1873, the defendant commenced an action against the plaintiff, before a justice of the peace, in the city of Lincoln, to recover damages for an alleged trespass in entering upon land and taking and carrying away some oats. The summons was served by leaving a copy thereof at the residence of the plaintiff; the time fixed for the trial of the case was the 25th day of the same month, at ten o’clock. A. M., and at that time judgment was rendered against the plaintiff. The plaintiff brought this suit by petition in equity to set aside that judgment and grant a new trial, and to maintain his cause of action he offered evidence showing that from the 14th until the 24th of January he was away in Nemaha county attending to his son, who was dangerously ill with erysipelas, and requiring his constant care and attention during that time; that on the 25th day of the month he arrived home in very ill health himself, and in the afternoon of that day he saw a copy of the summons which had been left at his residence during his absence, but was too unwell to attend to any business. The next day he rode to Lincoln, but becoming very *477sick, lie immediately returned home without seeing any person in relation to the case, and from that day, for nearly three weeks thereafter, he was confined to his bed with a severe attack of erysipelas. Iiis physician testified that he was unfit to attend to any business during this time, and “was quite delirious at times.” He also offered evidence showing grounds of defense to the action against him, which we think were sufficient to invoke the interposition of a court of equity when considered in connection with the facts above stated.

It seems clear from the evidence that the plaintiff’s care of and attention to his son in his sickness, was an absolute necessity, and could not be avoided; and that when he returned home he was sick and incapable of attending to business for nearly three weeks thereafter. Under these circumstances we think he is entitled to the relief sought.

A court of equity will grant relief against judgments obtained by fraud, surprise or mistake, or when, from any cause, manifest injustice has been done. And when a party, from some unavoidable circumstance, and without any laches or want of reasonable diligence on his part, is prevented from appearing and making his defense to a suit, courts will relieve him upon being satisfied that there is reasonable ground to believe injustice has been done to him by a-trial in his absence. Horner v. Conover, 2 Dutch. (N. J.), 139. Brooks v. Whiston, 7 S. & M., 513.

Ve are satisfied from the evidence that the plaintiff’s case comes within the above rule, and therefore the finding must be in his favor, and the decree of this court must be rendered accordingly.

Decree for plaintiff.