6 Neb. 178 | Neb. | 1877
Lead Opinion
This action was commenced by petition in equity in the district court by defendant in error to vacate a decree of foreclosure and order of sale rendered at the October Term, 1875, of said court. The grounds alleged for vacating the decree are in substance as follows^ That, the decree included the entire amount of the debt secured by the notes and mortgage, though only a part of the, same was then due; that the decree was taken for more than the whole amount of such debt, and for too much interest; that defendant, Elizabeth Hooper, was a married woman, and the summons was irregularly issued. The plaintiff denies the allegations of the petition, except that defendant Elizabeth Hooper was a married woman, and denies that the decree included more land than is described in the mortgage; and then sets up as new matter that the defendants employed counsel
It appeared that the summons was technically defective in form, which defect might perhaps have been taken advantage of upon motion by the defendants, but it was no such defect as bars the jurisdiction of the court over the subject matter and the defendants.
It appeal’s by the evidence that counsel was employed by defendants in the foreclosure case, at whose request the cause was passed several days by the court, and that after the decree was taken the proper stay was entered; and the evidence further shows that the plaintiff advanced and paid other large sums of money for the defendants, and that- the parties, on or about the first day of December, 1875, had a settlement of all their matters, including the amount of the decree of foreclosure at $4,473.14, and found the sum total due plaintiff by defendant, Richard, to be $5,400, for which amount the defendant gave plaintiff a new note, and to secure the same executed and delivered to her a mortgage, including the lands in the former mortgage and other lands; that this “new note was given to pay off the judgment and decree,” and secure the amount thereof and other sums advanced and paid by plaintiff for defendants, and that “ the de.cree was satisfied and receipted in accordance with the terms of the settlement,” and discharged of record.
The mortgage on which the foreclosure was had contained a stipulation “ that if any of said 'notes become due and remain unpaid for ninety days thereafter the whole of said notes aforesaid shall become due,” and also for the payment of an attorney’s fee of one hundred dollars in case of a foreclosure of said mortgage. Now
In Lieman v. Hinman, 16 Ill., 404, referred to by counsel for defendants, the court merely decided that upon the contract involved in the case the recovery of interest from the commencement of the action was not authorized by the statute; and in Crane v. Dwyer, 9 Mich., 352, “ the case made by the bill is a forfeiture of one of the defendants of all her rights in a contract made with complainant for the purchase of a lot of ground,” and it was held that equity will not lend its aid to enforce such a forfeiture. These cases do not, either in principle or fact, apply to the case at bar.
Again, it is alleged as cause for moating the decree that it included too (much interest. Five notes were given by defendants to plaintiff, to secure which the mortgage was executed; and it appears that interest up to the time each note respectively became due was included as part of the principal, and that the decree was taken for the amount as appeared on the face of the several notes,'without deducting therefrom .the interest from that time until the time they would severally become due. And this constitutes the main subject of complaint, and presents for consideration the question whether, after permitting the decree to be so taken by
In Horn v. Queen, 4 Neb., 113, 114, it is said that “ equity, will grant relief in a. proper case where fraud has been practiced by the successful party in obtaining the judgment, or where from accident or unavoidable circumstances, without fault on the part of the party applying therefor, a full and fair trial has not been had.” And on this ground a new tidal was granted in this case; but, after citing the case of Lieby v. Heirs of Ludlow, 4 Ohio St., 493, with approval, in which it is held that “ before a court of chancery will order' a cause to be reheard at law they will require the complainant to show that he used due diligence in preparing and conducting his defense at law, and that he was prevented from then making it by circumstances beyond his control,” it was by the unanimous opinion of this court said that: “We think this is clearly the law that a fa/rty must hme done all he could wider the cvrcwnstcmces, that he has not been negligent, and that he must show he has a defense to the action.” This is a precise statement of the rule, and is substantially reiterated in the same case, brought a second time to this court, and reported in 5 Neb., 472. And in Green v. Hamilton, 16 Md., 329, 331, it is held that if the defendant “ absents himself he has no better standing in court afterwards than a defendant who defends his cause,” for “to allow a defendant who was absent without any fault on the part of his adversary to come in after the term and have redress would be reversing the maxim, vigilantibus etnondormientibus ju/ra subveniimt."
But the principle is not questioned that power to set aside judgments and decrees, upon sufficient showing by motion made during the term at which they are rendered, is a common law power incident to courts of record; and that upon motion after the term has passed
In Huntington v. Finch & Co., 3 Ohio State, 447-8, it is held that the court “has control over its own orders and judgments during the term at which they are rendered, and the power to vacate or modify them in its discretion. But this discretion ends with the term, and no such discretion exists at a subsequent term of the court. And the power of the court to set aside or vacate its judgments subsequent to the judgment term is governed by settled principles, to which the action of the court must conform. It is well settled in this court that a judgment may be vacated or set aside, on motion at a term subsequent to the judgment term, for irregularity or improper conduct in procuring it to be entered; and this has become one of the accustomed and settled remedies for relief against judgments wrongfully ob
Again, it is to be observed that “in accordance with the terms of the settlement ” made between the parties subsequent to the rendition of the decree, the new note and-mortgage were executed and taken in satisfaction of the decree complained of, and that by the terms of this settlement and contract the decree was receipted and discharged. No ground is stated or prayer made in the petition to set aside this discharge of the decree, and until this is done, it is difficult to perceive how the court can vacate a decree which is discharged. It must therefore follow as a necessary sequence, that when a decree is fully satisfied and discharged it can have no more .legal effect than if it never had been rendered, and hence', if there was any sufficient ground to restore the parties to the relations existing between them before the decree was rendered, should not the satisfaction and discharge of it be first removed?
Some clerical mistakes or irregularities occurred in the foreclosure case, but as this action is to vacate the decree, and as they could not, in any view of the case, be reformed in this kind of action, it is not necessary to express any opinion in regard to them. It is, however, urged in the argument for defendants, that as defendant, Elizabeth Hooper, is a married woman, being the wife of Richard, the other defendant, this action by original petition may be maintained under subdivisions three and five, of section six hundred and two of the civil code. Conceding that this statute may be strictly ap
Finding no cause, either in law or fact, to justify the court in vacating the decree, and as this case is brought into this court upon error, and not by appeal, the decree rendered in the court below in the case at bar must be reversed, and for the reasons given in this opinion it is now ordered adjudged, and decreed that the defendant’s cause of action be dismissed with costs.
Dissenting Opinion
dissenting.
This is a proceeding under subdivisions three and $ve of section six hundred and two of the code, to set aside the judgment and default, and permit the defendants to answer the petition.
The judgment of a court of general jurisdiction directly upon the point in issue is, as a plea in bar, or as evidence, conclusive between the same parties; but the judgment is conclusive only in the matter which was d/i/reotly in issue in the former trial. Such a judgment is not evidence of any matter which came collaterally in question, although within the jurisdiction of the court. The matter in issue is that upon which the plaintiff predicates his action and which the defendant controverts by his answer. The decree in this case was for $100 more than the amount claimed in the petition, and embraced one hundred and fifty acres of laud not included in the petition. These errors could scarcely have been the result of mistake, yet we are told that the decree is final and conclusive unless fraud is shown.
The rule is well settled that a plaintiff cannot have other or greater relief than the case made by his pleading will warrant, and the decree must conform to the prayer and cannot exceed it.
In Huntington & McIntyre v. Finch & Co., 3 Ohio State, 448, it was held that a judgment may be vacated or set aside on motion, at a term subsequent to .the judgment term, for irregularity or improper conduct in procuring it to be entered.
In Horn v. Queen, 4 Neb., 113, it was held that equity will only grant a new trial in cases of newly discovered evidence, surprise, fraud, or the like, where the party is deprived of the means of defense by circumstances be, yond his control. In that case the plaintiff was sued before a justice of the peace, and a copy of the summons left at his residence during his absence. On the day of the trial he returned home, but, as alleged in the petition, “too ill to give the matter any attention, which .illness continued for more than ten days.” On demurrer to the petition it was held that a new trial should be granted, as the justice court could give no relief.
In an action of foreclosure it is not necessary to endorse the amount claimed on the’ summons. Watson v. McCartney, 1 Neb., 131. But the defendant need not appear in the action if the petition trathfully sets forth the cause of action. He may rely upon the court to see that a decree is rendered conformably to the petition: The journal entries are usually prepared by attorneys, who, being officei’S of the court, are amenable to it for the proper discharge of their duty. If a mistake is made in any respect the court certainly has the right to correct it at a subsequent term. Suppose a decree is taken on the last day of the term against a party in default for an amount greater than the facts stated vn the petition will wa/rrant, and the court immediately thereafter adjourns, is the defendant bound by such a decree unless an appeal is taken? Or, may he not apply to the same court at a subsequent term to correct the error? I think he may.
A decree for too large a sum, or embracing matters not in controversy, cannot be considered the deliberate judgment of, the court. And when there has been an irregulai’ity in taking the judgment, or fraud, imposition, or mistake in obtaining the same, the j udgment should be set aside. And the proper remedy in such cases is by motion, as the errors frequently do not appear in the record, and therefore cannot be reviewed on error.
Here the decree was rendered for a sum not warranted by the facts set forth in the petition, and without an appearance on the part of the defendants. It is true that an attorney afterwards took a stay of the order of sale, and
In this case it is sought to set aside the judgment and default, and allow the defendants to answer the petition of the plaintiff. The district court in furtherance of justice has found that they should be set aside and the defendants be permitted to answer, and I think that the court did not err therein. The wife at least has never appeared in the action, and the fifth subdivision of section six hundred and two of the code expressly provides that a married woman shall be entitled to the benefit of this section.
It is contended that as the statute has changed the common law rule in this state by permitting a married woman to sue and be sued, that therefore this section has no application. It is a sufficient answer to say that the law does not favor a repeal by implication, and that if the two sections are not inconsistent with each other they will be permited to stand; and that is the rule laid down by this court in The People v. Weston, 3 Neb., 323. White v. The City of Lincoln, 5 Neb., 614.
But the husband has made no such appearance as precludes him from seeking to set aside the judgment, and a settlement made by him in ignorance of the real facts im, the case does not, and ought not to prevent him from availing himself of the defense that the decree was taken for too large an amount, and that it included land not embraced in the petition. As to the latter, in all probability the decree is a nullity, but a party in such a case has a right to have the cloud created thereby removed.
As to the objection made by this court to the form of proceeding, it is sufficient to say that although .verified
Decree for Plaintiff in error.