State ex rel. Nelson v. Lincoln Medical College

86 Neb. 269 | Neb. | 1910

Letton, J.

This is an appeal from an order of the district court striking from the files a petition of respondents to set aside the judgment formerly rendered in this case, and to be permitted to file additional and supplemental returns to the writ of mandamus heretofore issued, for the alleged reason that the relator perpetrated a fraud in the trial of the case by giving false and perjured testimony in a material matter; that the false testimouy was knowingly and fraudulently given and. produced for the purpose of substantiating a material issue in the case. The allegations of fraud and perjury are set out fully and specifically in the petition, and, though objected to by the respondents, are suffich ,tly specific to warrant the district court to take proofs, and if satisfied of their truth and materiality to set aside the judgment. The most serious question is with regard to whether the application ya made jn, time under the provisions of section 609 of the code. This section provides: “Proceedings to vacate or modify a judgment or order, for the causes mentioned in subdivisions 4, 5 and 7 of section 602 must be commenced within two years after the judgment was rendered or order made, unless the party entitled thereto be an infant, or person of unsound mind, and then within two years after removal of such disability.” This proceeding is brought under subdivision 4 of section 602, and consequently must be commenced within two years. The judgment sought to set aside was rendered June 27, 1906. The present application was filed November 27, 1908, and consequently beyond the time limit fixed by the statute, unless some reason for not filing it within the two years appears in the petition. The allegations with respect to this in the petition are as follows: “These respondents, and each of them, further allege that they had no knowledge pf such fraud and forgery, and no knowledge that the said Ella May Nelson had testified falsely, and no knowledge that said diploma was a forgery until a long time after the judgment was rendered in this case in this court, and after an appeal and submission of the case to the supreme court of the state of Nebraska, and that, upon learning of said facts, these respondents, and each of them, made application to the supreme court of the state of Nebraska for permission to reopen said case in said court and take additional testimony; that said application was denied, for the reason that the supreme court had no jurisdiction to grant such application, but that the proper forum for such application was in the district court of Lancaster county, Nebraska.” There is- nothing in the facts alleged to show that full knowledge did not come to the respondents within the two years, and, the statutory period having elapsed, it was incumbent on the petitioners to allege some facts excusing the failure to comply with the statute. While we are not bound to do so, we have taken pains to examine the records in this court as to the time of appeal and submission of the case. The transcript on appeals ivas filed in this court December 26, 1906, and the case submitted December 3, 1907. There remained 18 months after the appeal was taken, and 6 months and 24 days after the submission of the case, until the expiration of the two-year period within which the petition might have been filed. It was held in Van Antwerp v. Lathrop, 70 Neb. 747, in which case a similar petition was filed two years and six months after the rendition of judgment, that, “where such a petition fails to set forth that the facts were not discovered within two years of the trial, and fails to show any reason for extending the two years allowed by statute for setting aside judgments for fraud, equity is powerless to relieve.” The rule would certainly not be more liberal in a purely statutory proceeding. The petition failing to show a case in which the district court had power to act, the order striking it from the files was justified.

The judgment of the district court is therefore

Affirmed.