Barbara Schneider, the plaintiff and appellee, claimed an interest in three lots in the city of Omaha, Nebraska, and a quarter section of land in Washington county, Nebraska, as one of the heirs of Mary Thomas, deceased. Some time about the year 1900 she employed H. E. Carter, an attorney at law residing in Tekamah, Burt county, to obtain partition of said real estate. The terms of Carter’s employment are not clearly shown, but the plaintiff testified that she offered him 10 per cent, of the amount realized from her share of the property. One of her sons testified that Carter informed him that he would have to investigate the facts of the case before fixing the amount of his fee, but there is no evidence tending to show that any offer was made him in excess of 10 per cent., and, as he afterwards commenced an action for the plaintiff, the presumption must obtain that he accepted her offer and proceeded with the understanding that 10 per cent, of the amount recovered was the amount of his fee. This presumption obtains only for the purpose of the present hearing. Evidence in further proceedings may overcome it. -
In August, 1900, Carter filed a petition in Douglas county district court, asking a partition of the real estate,
Afterwards, and,on the 5th day of February, 1904, the plaintiff filed her petition in this action, alleging that in the year 1900 she employed H. E. Carter as her attorney to prosecute* an action in the district court for Douglas county, Nebraska, against Julia Thomas, George F. Thomas and Chas. T. Dickinson, to recover her share of the estate of Mary Thomas, deceased, under an oral contract by which he was to receive for his services 10 per cent, of the value of the property recovered; that Carter commenced the action and employed Charles S. Lobingier to assist him in prosecuting the same; that a decree was entered awarding her a certain interest in the property; that defendants, unmindful of their duty as attorneys, fraudulently represented to Fisher, the referee appointed to make partition, that by agreement with the plaintiff they were entitled, each, to an undivided 1-5 of the east 58 feet of lot 2, in block 211],-, in the city of Omaha, and persuaded him to so report to the court; and that they fraudulently obtained a decree from thé court confirming in them a 1-5 interest in the east 58 feet of said lot 2. She further alleges that she did not agree or consent to said report or decree, or know of the entering of the same until about the last day of December, 1903, when she learned the fact at her home in Burt county, about 70 miles from Omaha. She asked that the referee’s report and the decree based thereon be set aside and a new decree entered, in which she would be awarded the interests given to Carter find Lobingier by the decree which she asked to have vacated. The defendant Carter filed an answer in which he admits that he is not now, and never was, entitled to a decree in the case referred to giving him an undivided 1-5 of the east 58 feet of lot 2.
It is earnestly argued that the plaintiff should have taken advantage of the provisions of section 602 of the code to have the decree of which she complains vacated, and that, having neglected to proceed under the statutes, equity will afford her no relief. To the writer it is a question of great doubt whether the provisions of sections 602-609 of the code have reference to cases of this character. These provisions of the code undoubtedly apply to parties to the action, and are intended for the relief of a plaintiff or defendant who has suffered from the mistake, neglect or omission of the clerk, from the fraud of the opposing party, for casualty or misfortune which prevent him from prosecuting or defending, and for other matters within their provisions. But we are not certain that they offer a remedy, where one not a party to the record, and without knowledge on the part of one of the parties, obtains from the court a provision in the judgment finally rendered, taking from that party a substantial right for the benefit of such stranger to the record. But, even if the plaintiff might have the benefit of these provisions of our code in obtaining relief from the unauthorized acts of her attorneys, the cases,- while not numerous, are all to the effect that these provisions of our code create no new rights, but are merely declaratory of the equity doctrine that a judgment clearly shown to be obtained by fraud, and which it would be against conscience to enforce, may be set aside in án equitable action brought for that purpose. Secord v. Powers, 61 Neb. 615; Barr v. Post, 59 Neb. 361.
The district court was undoubtedly right in vacating the decree as entered, but it erred in dismissing Lobingier’s cross-bill. • We think it should have recognized the equi
We recommend, therefore, that the decree be modified, Avith permission to the parties to amend their pleadings, if they so elect, and that upon a second trial of the casé the amount due Garter under his contract with the plaintiff be ascertained; that the same be made a lien upon the property awarded the plaintiff; that the terms of Lobingier’s employment be ascertained, and he be awarded an interest in the lien established against the property in favor of Garter for the amount of his fee, if the same was
By the Court: For the reasons above given, the judgment of the district court dismissing the counterclaim of the defendant Lobingier is reversed and the cause remanded, with directions to proceed therein as indicated in the above opinion.
Reversed.