50 Neb. 849 | Neb. | 1897
In the district court of Douglas county, George W.Scott brought a suit in ejectment against Johanna C. Wright and Luther E. Wright. The parties made defendants appeared and answered and judgment was rendered against them. After the adjournment of the term at which such judgment was rendered, Johanna O. Wright filed a petition against Scott to vacate the judgment rendered against her in the ejectment suit. To this petition Scott interposed a general demurrer, which was overruled and the judgment vacated, and from this order Scott has prosecuted an error proceeding.
The petition of Mrs. Wright sets forth facts which constitute a meritorious defense to the action of ejectment. In her petition she also avers that at the time of the rendition of such judgment she was a married woman, the wife of her co-defendant in the ejectment suit, Luther E. Wright; that she depended entirely upon him to manage and conduct the defense of the ejectment suit, and to inform her whenever any proceedings were to be had or her presence or evidence were required in the action; that at the time of the rendition of the judgment her husband “was sick and unable to be in attendance in court or present at such trial, and said judgment was rendered in his absence and in the absence of all persons interested in the defense to said action;” that she did not know that a trial had been had and a judgment rendered in the ejectment suit until after the adjournment of the term in which such judgment was rendered; that after the rendition of such judgment, and after the recovery of said Luther E. Wright from such sickness, he willfully and wrongfully withheld from his wife all knowledge that any proceedings had been had in such action, until too late to file a motion to set such judgment aside.
Do the facts averred in this petition show that Mrs. Wright was prevented from defending the ejectment suit by unavoidable casualty or misfortune, within the mean
If it be conceded that the sickness of counsel on the day of trial is an unavoidable casualty or misfortune within the meaning of the statute, the facts averred in the petition do not disclose that the judgment in ejectment against Mrs. Wright was the result of such casualty or misfortune; nor do they show that, by reason of the sickness of her husband on the day of trial, she was deprived of an opportunity to file a motion to vacate the
Reversed and remanded.