116 Neb. 397 | Neb. | 1928
Action in equity to enjoin proceedings to collect a judgment against the plaintiff on the ground, as alleged, that sai,d judgment is void for three reasons: First, that the plaintiff was not a party defendant in the suit in which thei judgment was rendered; second, that no cause of action against plaintiff was stated in the petition; and, third, that the judgment was not supported by the evidence. A trial in the, court below resulted in a judgment for the defendants, and plaintiff appeals.
.. The case was presented to the lower court solely upon the record of the case in which the judgment was rendered, from which the following facts appeared without dispute. The petition was filed June 25, 1922, entitled, “Bertha Krug, Plaintiff, v. Henry Meyer, Fred Meyer, Bank of Benkelman, a corporation, and Independent Elevator Company, a corporation, Defendants.” Service was had upon the elevator company as a corporation by delivering a copy of the summons to Eugene F. Ham as general managing agent, ■ and the other defendants were regularly served. July 24, 1923, application for extension of time to plead was made, signed “Charles S. Briggs, attorney for defendants.” August 20, 1923, demurrer to the petition was filed, signed “Charles S. Briggs, attorney for the defendants, for- the purpose of this demurrer.” The demurrer
September 27, 1924, plaintiff filed a motion for leave to amend the petition, naming as defendants in said motion “Eugene F. Ham and Ovid M. Kellogg, partners doing business under the firm name and style of Independent Elevators, the Independent Elevator Company, a corporation.” The motion recited the history of the case up to that time, alleging the identity of all parties, and that plaintiff had been led to believe by defendant Ham that his organization was a corporation, and did not learn the contrary until the coming in of said answer: The prayer of the motion was for leave to file a second amended petition making “Independent Elevators, a copartnership, composed of Eugene F. Ham and Ovid M. Kellogg,” the defendants. Leave being granted, second amended petition was filed, entitled, “Bertha Krug, Plaintiff v. Eugene F. Ham and Ovid M. Kellogg, partners doing business at Benkelman, Nebraska, under the firm name and style of Independent Elevators, Defendants,” and upon this petition the case was tried. The action was for conversion of the proceeds of the sale of certain wheat of which plain
“The court finds that the defendants Independent Elevators, Ovid M. Kellogg and Eugene F. Ham are indebted to the plaintiff, Bertha Krug, on the cause of action set forth in her petition herein filed, in the sum of eighteen hundred sixty-four and no 10.0 ($1,864) dollars, and that said amount shall draw interest from this date at 7% per annum.
*401 “It is, therefore, considered, ordered and decreed by the court, that the plaintiff, Bertha Krug, have and recover from the defendants, Independent Elevators, Ovid M. Kellogg and Eugene F. Ham, the sum of $1,864, with interest from this date at the rate of 7 % per annum, and the costs of suit, taxed at $-.”
Motion for a new trial entitled, “Bertha Krug, Plaintiff, v. Eugene F. Ham, et al., Defendants,” was by “defendants” filed upon the usual grounds, and that the petition did not state facts sufficient to constitute a cause of action, and that the same was barred by statute of limitations, which motion was overruled. Independent Elevators filed no motion for new trial, unless it may be considered as included in the term “defendants.”
Thereupon Ham and Kellogg, as individuals, filed an appeal bond and docketed the case in this court, where the same in due course came on for hearing before Commission No. 1, resulting in a reversal of the judgment as to the individual defendants on the ground that, after they had been dismissed from the case presented by the original and first amended petitions they were no longer parties and when the second amended petition was filed the statute of limitations had barred plaintiff’s claim. As the Independent Elevators had not appealed, the judgment as to it was affirmed. A motion for a rehearing was filed by the individual appellants asking a reversal also of the judgment as to Independent Elevators, on the ground that it had never been a party to the proceedings, was not served with process, and did not enter its appearance in the action. The motion was overruled, and upon the recording of the mandate in the district court an execution was issued upon the judgment and levied upon property of Independent Elevators. Thereupon this suit was brought to enjoin the proceedings.
The first question for consideration is the validity of the judgment under attack; if erroneous, it may not be overturned in this proceeding; if void, it need be given no consideration; and the only question would be whether plain
The request granted was leave to make Independent Elevators, a copartnership, a party defendant; but the petition filed in response was against Ham and Kellogg, co-partners as Independent Elevators, and judgment was prayed only against Ham and Kellogg, as individuals, not against Independent Elevators. Clearly this did not bring the latter into the case as a party. Ham and Kellogg answered as individuals; Independent Elevators filed no answer. Up to this point it must be conceded that judgment against the Independent Elevators would have been absolutely void, as being against one not a party, not served, and as to whom the petition made no allegations and asked no judgment. The following matters, however, appear of record: When originally sued as Independent Elevator Company, a corporation, it filed a demurrer to the petition in that character, later, a motion to strike the amended petition, and still later, about one year after suit was commenced and after the statute of limitations had barred the action, filed an answer, and for the first time alleged that it was not a corporation. Independent Elevators made no objection to the second amended petition and filed no answer; it approved by its counsel the journal entry submitting the cause for trial, containing the recital “the Independent Elevators, a partnership composed of Eugene F. Ham and Ovid M. Kellogg, appearing by their attorney, Charles S. Briggs;” and finally presented and filed a brief in the name of Independent Elevators, naming it as the sole defendant, and in which neither the name of Ham nor Kellogg appears in any connection. By the filing of this brief. Independent Elevators participated as a party in the trial of the cause; it urged on its own behalf all the defenses set up in the answer of Ham and Kellogg, with reference to which it may be said: “The hand is the hand of
To reach a different conclusion would require us to find that counsel for defendant in the first case had deliberately deceived and misled the court and opposing counsel into the belief that Independent Elevators was a party to the suit; this we are not inclined to-do in view of the high standing of that gentleman at the bar of this state. The instant case is presented by other counsel.
Having concluded, for the reasons stated, that the judgment attacked is not void, it is at most erroneous and could only be set aside in a direct proceeding by appeal, of which remedy the present plaintiff failed to avail himself. Pollock v. Boyd, 36 Neb. 369.
In view of our conclusion, the other questions presented by the briefs need not be discussed. It would seem, however, that, plaintiff having appeared by counsel in the first case, its present predicament is the result of a failure to pursue the plain legal remedies appropriate to the situation, and therefore he has no standing in a court of equity. See Koehler v. Reed, 1 Neb. (Unof.) 836, and cases cited.
Affirmed.