Pollock v. Boyd

36 Neb. 369 | Neb. | 1893

Post, J

This is an action in equity and was tried in the district court of Cedar county, resulting in a decree for the appellee, who was plaintiff therein, and from which the defendant appeals.

The petition states in substance that on or about the 9th of March, 1886, one Robert J. Valentine obtained a judgment against the plaintiff in the county court of Cedar county, by default, for the sum of $538.08 and costs taxed at $18.10; that afterwards said default judgment was set aside and defendant allowed to enter his appearance and defend, and afterward, on the 13th day of July, 1886, said cause was finally dismissed at the costs of the said Valentine; that on or about the 15th day of November, 1888, and long after said cause of action was finally dismissed, the defendant procured from the said Valentine an assignment of said pretended judgment, and on the 6th day of December, 1888, procured from the county judge of Cedar county a transcript of so much of the proceedings in said cause as showed the judgment against the plaintiff, purposely omitting the further proceedings setting aside said judgment and the final dismissal of said cause; that on the 6th day of November, 1888, defendant filed his said pretended transcript in the office of the clerk of the district court of Cedar county, and caused the same to be entered on the judgment docket of said court, and indexed as a valid and subsisting judgment against the plaintiff; that at the time said pretended transcript of judgment was filed in the district court plaintiff was and still is the owner of a large amount of real estate situated in said county, and that the said pretended judgment appears to be a lien upon the said lands of plaintiff and casts a cloud upon his title to the same; that said defendant threatens to have execution issued on his said pretended judgment, and to levy the same on the lands of plaintiff, to sell the same thereunder, and will perform such unlawful acts unless restrained by the order of the court, etc.

The prayer of the petition is for a restraining order and that on a final hearing said pretended judgment be canceled and set aside, and the cloud removed from plaintiff’s title, and for general equity relief.

The answer of defendant admits so much of the facts stated in the petition as relates to the entry of the judgment by default and the assignment of the judgment to defendant, and denies all of the other allegations thereof.

The real contention of the appellant is that the action of the county court in setting aside the judgment by default was without jurisdiction and void. On the 15th day of March, six days after the rendition of the judgment against him, the appellee Pollock filed in the county court a petition to vacate said judgment, and caused a summons to be issued for Valentine, the plaintiff therein. On the 26th day of March said summons was returned, showing personal service in due form. It also appears from the record that on the 5th day of April, the day set for the hearing of said petition, the said Valentine appeared by attorney and demurred to the petition for a new trial, which was sustained as to the first count and overruled as to the second count thereof, and a stipulation was filed allowing appellee until April 12 to amend his petition for a new trial, and allowing Valentine until April 17 to answer; that on the day last named said Valentine filed a demurrer to the amended petition, which was overruled, and there being no further appearance it was ordered that said judgment be set aside and vacated, and appellee Pollock permitted to enter his appearance and defend on condition that he pay the costs taxed at $16.40 on or before the 3d day of May following. It also appears that said condition was performed by payment in full of the costs on the day last named. It further appears that on the 10th day of May the appellee filed a motion to require Yalentine, plaintiff therein, to attach to his petition an itemized copy of his account, which was overruled; also, that the-said plaintiff filed an amended petition on the 7th day of June, a second on the 11th of June, and a third on the 21st of the same month; that on the 6th day of July he again obtained leave to amend by the 13th of that month, on which day, having failed to amend in accordance with the order of the court, the action was dismissed for want of prosecution. At the time, therefore, of the assignment by Yalentine to the appellant the latter had notice, of all the facts disclosed by the record, and his equities are cer tainly notsuperior to those of his assignor. Appellee was entitled to have the judgment rendered against him in his absence set aside on motion and payment of costs if made within ten days. (Civil Code, 1001.) While the proceeding by petition was irregular it is clear that the order setting aside the judgment is not void for want of jurisdiction. The petition contains all the allegations required in a motion, and seems to have been so regarded by the court, which evidently disregarded the unnecessary allegations and granted the relief to which the appellee was entitled. Yalentine, the plaintiff in that action, had notice of the application within the statutory time and appeared, but made no objection on the ground that the remedy of the appellee was by a proceeding entitled a motion instead of a petition. He also, subsequent to the setting aside of the judgment, continued to invoke the power of the court by filing amended petitions claiming judgment against the appellee for the same cause of action. Had he desired to have the order in question reviewed, it should have been done in a direct proceeding. There is no equity in his present position, hence the decree of the district court is right and should be

Affirmed.

The other judges concur.