70 Neb. 747 | Neb. | 1904
The plaintiffs in this case complain of a sustaining of a demurrer to their petition in the district court. They allege that they are husband and wife, and that defendants are brothers of the wife; that her father obtained title by a homestead entry made-in 1881 to land in Custer county; that from 1881 until his death in 1893 he made his home with the plaintiffs most of the time, but at his death was in Wisconsin and had there all of his papers and effects; that in 1885 plaintiffs mortgaged 160 acres of land in Cus
The petition was filed April 8,1903, and alleges, as above indicated, that the decree complained of was rendered on October 3, 1900. The trial court found that the petition stated no cause of action; that the judgment sought to be set aside was rendered more than two years before it Avas filed, and that action to have that judgment opened up on the ground sought was barred by the statute of limitations. Judgment of dismissal was entered, and plaintiffs bring error.
The question presented here is, does the petition, above summarized, present facts sufficient to Avarrant the interposition of a court of equity to set aside the decree two years and six months after its rendition?
It is objected by the defendants that this petition is defective in not setting out what the pleadings were in the answer to the foreclosure action. It is true that this is only inferentially alleged. It is alleged that the defense of payment by the father was known to the parties, and it is alleged that the evidence of the unlaAvful erasure and of the
It is also- complained that the allegations that the indorsement on the note and mortgage of the word “paid” was not written by any employee of the investment company, but Avas written by one of the defendants, are only upon information and belief. A fair interpretation of the petition Avill not bear this construction. It is true that there is an allegation that some of these facts were learned by correspondence, but there is also a distinct allegation that they can identify the handAvriting, and that they were positively informed that the investment company did not place the canceling words on the instruments.
A more serious objection, perhaps, is that the evidence alleged Avould not avail to establish perjury. It is not, however, claimed that the pleader who alleges the fact of perjury is bound, at the same time, to set up all the evidence at his command to establish it. It would seem sufficient that he alleges in positive terms perjury by the party prevailing, and alleges a sufficient degree of diligence on his part to guard against the consequences of such statements. In the comparatively few cases which can be found of the setting aside of a decree or judgment for perjury by the prevailing party, the element of surprise is usually present, or else that of the complete lack by the other party of the information on that particular point. The latter seems to be what is relied upon in the present instance. It would seem that there is sufficient in this petition, if these statements were all admited to be true, to call for the setting aside of this decree. A case fully as strong is Marshall v. Holmes, 141 U. S. 589, and is somewhat similiar in its facts, only in that case a forged letter, instead of
It is recommended that the decree of the district court dismissing plaintiffs’ petition be affirmed.
For the reasons stated in the foregoing' opinion, the decree of the district court is
Affirmed.