91 Neb. 248 | Neb. | 1912
This is an application by -Wilhelm yon Gahlen, Wilhelm Grünewald and Heinrich Steinacker for relief under section 82 of the code, which provides: “A party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may at any time within five years after the date of the judgment or order have the same opened and be let in to defend.” The application was denied, and the applicants named have appealed.
The decree which applicants seek to open was rendered June 27, 1904, in a suit wherein Philip S. Rine is plaintiff:. In Dodge county he owned a tract of land incumbered by mortgages aggregating $6,000. Carl Hembeck was mortgagee, but died before the debt was paid or the present suit instituted. According to the petition plaintiff sought to determine judicially the ownership of the mortgages, to make payment of the amount due thereon, and to discharge the liens on his land. The defendants were John A. Rine, administrator of the estate of Carl Hembeck, deceased, Laura Rine, Louise Steinacker, William von Gahlen, William Grünewald and the unknown heirs of Carl Hembeck, deceased. A summons was personally served on the administrator and Laura Rine, but there was no service on the other defendants except by publication in a newspaper.
In his petition plaintiff alleged: Defendants Steinacker, von Gahlen and Grünewald are respectively niece and nephews of Hembeck and are legatees under his will. Hembeck died without issue and without leaving surviving him a wife. Defendant Laura Rine is a niece of the de
Jane 24, 1909, defendants von Hablen, Grünewald and Heinrich Steinacker, the latter claiming to be the sole surviving heir of defendant Louise Steinacker, who died April 22, 1899, filed a motion to vacate the decree on the ground that they had no knowledge or notice of the action or opportunity to make a defense, that no service was had upon them except by publication iu a newspaper, and that five years had not elapsed since the entry of the decree. Notice" of this motion was served on plaintiff and Laura Eine June 24, 1909, and on John A. Eine the next day. The notice was accompanied by affidavits of the applicants that they had no knowledge of the pendency of the suit until July 14, 1908, and that they had no opportunity to make a defense. With their motion the applicants filed an answer admitting their relationship to Carl Hembeck, deceased, but denying the allegations on which Laura Eine’s claim of ownership of the mort
The statute provides: “A party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may at any time within five years after the date of the judgment or order have the same opened and be let in to defend; before the judgment or order shall be opened, the applicant shall give notice to the adverse party of his intention to make such an .application, and shall file a full answer to the petition, pay all costs, if the court require .them to be paid, and make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense.” This is clearly a remedial statute within rules formerly announced by this court and should be liberally construed with a view to suppressing the mischief at which the legislation is directed and to advancing the remedy. Buckmaster v. McElroy, 20 Neb. 557. The code itself requires a liberal construction of the language quoted. Code, sec. 1. Construing section 82 of the code, this court in Savage v. Aiken,, 14 Neb. 315, said: “The right to relief by a party who has not been actually before the court, nor had actual notice of the proceeding against him, is earned by his appearing and claiming it, and doing the things required of him by the statute, within the time therein limited, and the power of the court to grant the
The judgment is therefore reversed and the cause remanded to the district court, with directions to open the' original decree and to allow applicants to make their defense.
Reversed.