74 Neb. 531 | Neb. | 1905
This is an appeal from an equitable action instituted by the appellant in the district court for Lancaster county to obtain a new trial in a certain cause pending in that court, and in which judgment was entered on the 2d day of April, 1903, against the appellant and in favor of L. W. Billingsley, trustee. In January, 1900, the appellant filed in the district court for Lancaster county his petition against the Globe Savings Bank, and certain sureties upon a bond given to the state of Nebraska to pay the debts of said savings bank, and against Sadie E. Puckett. The petition alleged, in substance, that Sadie E. Puckett had deposited certain money in said savings bank; that she had assigned her passbook and account to the TootleWeakley Millinery Company; that the bank was insolvent, and that the sureties were liable for the amount of the deposit. After this petition was filed, Sadie E. Puckett was adjudged a bankrupt, and L. W. Billingsley was appointed as trustee of her estate. On May 8, 1902, the trustee obtained leave to file an answer and cross-petition to the petition of the Tootle-Weakley Millinery Company, within ten days. On February 3, 1903, without further leave of court, Billingsley, trustee, filed an answer and cross-petition. The cross-petition alleged that the passbook was the property of Sadie E. Puckett; that it came into the possession of the Tootle-Weakley Millinery Company without her knowledge or consent; alleged a demand for its return, and refusal; that it was of the value of $500; and prayed judgment for its value. No notice of the filing of this cross-petition was served upon the appellant, but on March 10 the plaintiff was’given five days to plead to the same. On the 19 th of March the default of
The appellant contends that the default judgment was rendered without jurisdiction. The record shows an appearance by its attorneys at the time of the trial, and active participation therein by the agreement to waive a jury. It is alleged, however, that these allegations are untrue. Even if so, the duly authorized attorney for the appellant appeared in court the next day and filed a motion for a new trial, which motion was acted upon by the court, and exception taken. Having invoked the powers of the court to set aside the default judgment, the appellant thereby admitted its jurisdiction. It cannot consistently say that the court had no jurisdiction in the proceedings, and at the same time pray for the exercise of its powers for its own benefit. The appearance made, by the
Appellant’s second contention is that there was no evidence to support the judgment. This point could properly have been raised upon error proceedings from the original judgment, and offers no reason for granting a new trial by a court of equity.
Appellant’s third contention is that the plaintiff had an absolute right to depend upon the official reporter to take the evidence, and, when called upon, to prepare a bill of exceptions. The evidence shows that W. T. Stevens, the attorney for the plaintiff, knew of the order made by the court giving the plaintiff leave to answer the cross-petition. The record shows that he was present at the time of the trial. It is true the petition alleges that this entry is incorrect and that no attorney was present, but we are compelled to accept the record as true in this proceeding. If any mistake was made by the clerk, the plaintiff should have applied to the court under the provisions of sections 602 et seq. of the code to have the same corrected so as to show the facts. It would establish an evil precedent if we should permit the records of the district court to be corrected by proceedings in equity to obtain a new trial. If the record could be contradicted in a proceeding of this nature, no faith could be placed in the verity and finality of judicial proceedings, until the time fixed by the statute of. limitations to bring such actions had expired. The remedy provided by the statute for such corrections is ample and there is no reason why it should not be followed. If the plaintiff was present at the trial, the absence of the official reporter should have been called to the attention of the court, and, if an order for his attendance was refused, that fact should have been preserved in the record. We have held that a party is justified in relying upon the court reporter for a transcript of the oral proceedings at the trial, and that if, without fault on his part, such transcript cannot be furnished nor a bill of exceptions prepared, a court of
The appellant prays for alternative relief, and asks, if it is held that it ig not entitled to a new trial and the judgment is not set aside, that it may be allowed to set off against the judgment a balance remaining unpaid upon its allowed claim against the estate of Sadie E. Puckett. It argues that this claim was allowed in the bankruptcy proceedings; that this allowance is of the nature of a judgment, and that it is peculiarly within the province of a court of equity to set off one judgment against another. It appears that the appellant filed its claim in the bankruptcy proceedings for the sum of $2,293.60, which claim was allowed. This debt was secured by a mortgage upon certain real estate. Foreclosure proceedings were after-wards had, which resulted in a sale of the land and the
It has been urged that this is not the forum in which the appellant can have relief, but that it should be referred to the bankruptcy court, which alone has jurisdicdiction. At' the time of the hearing upon the allowance of the appellant’s claim in the bankruptcy court, the claim made by Mrs. Puckett against the appellant for the conversion of her passbook and money was not urged by her or her trustee as a ground of set-off against the appellant’s claim. That court therefore could not act upon it, even if it had possessed jurisdiction to pass upon the validity of an unliquidated claim for damages. Nor can appellant at this time be given any relief in the bankruptcy court, since its claim stands in the same condition as that of other creditors. It is adjudicated, and nothing remains to be done with it except to apportion to it its pro rata share of the assets of the bankrupt estate. With the judgment the case is different; unless the set-off is allowed, the appellant will be compelled to pay the whole amount of the judgment, and to receive in return upon its allowed claim only a small percentage of what is due to it from the bankrupt. The allowance of the appellant’s claim against the bankrupt’s estate has all of the finality of a judgment. We have, then, two adjudicated' demands, one in favor of the bankrupt’s estate and one against it. We have held that the appellant is not entitled to a new trial, and the case, as it riow stands, is a suit in equity to set off one judgment against another. This is the usual and ordinary manner of obtaining relief of this nature. It is not in every case that a court of equity will set off mutual demands which are distinct and independent of each other, but the insolvency of one party is a circumstance which strongly appeals to a court of conscience to apply the rule. If the result of the refusal would deprive one party of his property for the benefit of others to whom he is under no obligation, this will justify the granting of
As to the contention that the matter should be determined by the bankruptcy court, and not by this court, the rule is that the party desiring the set-off must move in the court where the judgment against him was recovered, because that is the court that controls the judgment. Black, Judgments, sec. 1,002. It is also true that suits to set off a judgment of one court against the judgment of another are equitable in their nature, and usually must be brought in a court of chancery. Thrall v. Omaha Hotel Co., 5 Neb. 295; Stenberg v. State, 48 Neb. 299. It is another elementary rule that, where a court of chancery has obtained jurisdiction of a controversy for certain purposes, it will retain the same until full justice and equity have been done between the parties. Why should the appellant be compelled to have recourse to another court to obtain relief which the present forum has full power to grant? No good reason has been assigned, and we think none can be given.
We recommend that the judgment of the district court be affirmed so far as the refusal to grant a new trial is concerned, but that the cause be remanded, with directions to the district court to ascertain the amount due the appellant upon its allowed claim and to set off the same against the judgment.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is affirmed so
Judgment accordingly.