28 Neb. 534 | Neb. | 1890
This appeal comes to this court from the judgment oí the district court of Hamilton county, upon the petition oí Catherine Engle to vacate and set aside the judgment and decree of said court theretofore rendered in a cause wherein W.V. Morse & Co. were plaintiffs and said Catherine Engle, F. J. Engle, and John Raben were defendants, and for a new trial in the said cause. For ground of such application she sets forth in her said petition substantially that the said F. J. Engle and petitioner were, and for more than twenty-one years last past had been, husband and wife, and with their children constituted one family; that on the 7th day of February, 1885, the said petitioner was, and for a long time prior thereto had been and continued to be, the owner in her own right, in fee simple, of lots 7, and 8 in block 21, in the original town of Aurora, and being the same property described in the pleadings and decree in said cause; and during the whole of said time actually used and occupied the same and the whole thereof with her said family as a homestead; that said property is of the value of less than $2,000, and at no time has been worth to exceed that sum; that on the 7th day of July, 1885, the said John Raben was justly indebted to the plaintiff W. V. Morse & Co. in the sum of $1,400 and that said petitioner was in no way bound for the payment of said debt, nor interested in the payment thereof^
The said petitioner further averred that she did not at any time appear before W. F. Peck, the notary public before whom said mortgage purports to have been acknowledged, nor before any other officer or person, and
The petitioner further averred that the mortgage, as declared upon in said action, purports to have been signed by her in the presence of one O. E. Peck, whose signature is appended to said mortgage as an attesting witness, but she averred that said attestation was wholly false and fraudulent and that said O. E. Peck was not present when she signed said mortgage as aforesaid, nor did she ever in any manner recognize said signature to be her own in the presence of said O. E. Peck, nor refer in any way to the same in his presence; nor did she ever sign said mortgage in the presence of any witness who subscribed the same as a witness thereto.
Petitioner further alleged and charged the truth to be that in the whole of said transaction the said F. J. Engle and W. F. Peck acted under the express direction of the said John Raben, and in all respects carried out his said corrupt plans, and that she had no knowledge, information, or notice whatever that said papers so signed by her as aforesaid were a note and mortgage, or that any fraud or deception had been practiced upon her until long after said mortgage had been placed upon record, to-wit, in the fall of the year 1886, and that after she obtained such notice and knowledge and proposed to take the necessary steps to protect her rights in the premises, she was prevented by her said husband from doing so for a long time and until he left said county and went to the state of Colorado, about the 15th day of January, 1887.
Petitioner therefore, under the advice of counsel, as she
This motion does not appear to have been acted upon by the court.
The plaintiffs demurred to said petition, which demurrer was overruled. Thereupon the plaintiffs and said defendant John Raben answered to said petition. In and by their said answer they denied each and every allegation in said petition contained and not therein expressly admitted. They further answered and alleged that said note and mortgage were duly executed in the presence of one W. E. Peck, and the execution of said mortgage was duly acknowledged by said Catherine Engle to be her voluntary act and deed, before said W. E. Peck, deputy clerk of the district court of Hamilton county; that said Catherine Engle, long after
Plaintiffs answering for themselves alleged and said that Catherine Engle never notified or claimed to them that she had not executed and delivered said note and mortgage with full knowledge of the nature and character of the same; that at the time of the execution and delivery of said note and mortgage there was due to said plaintiffs from said Engle & Co. a large sum of money, to-wit, the sum of more than $1,400; that by the execution and delivery of said note and mortgage said plaintiffs were induced to extend the time for the payment of $1,500 of the amount due them from said 7th day of February, 1885, to the 1st day of November, 1885, and induced to rely upon said mortgage as security for said amount and were thereby prevented from collecting the amount of their claim, from Engle & Co., who were then solvent, and who were then the owners of a large stock of merchandise unincumbered, of the value of $10,000; that on the - day -, 1886, the said plaintiffs filed their petition in the district court of Hamilton county for the foreclosure of said mortgage and caused a summons to be duly issued and actual service was made thereof upon said defendant Catherine Engle in said Hamilton county requiring her to appear and answer said petition in said court as required by law; that such proceedings were afterwards had that on the-day of-, 188 — ■, said plaintiffs obtained a decree foreclosing said mortgage, that notwithstanding the foregoing facts, and well knowing that counsel had appeared for her in said cause and had filed a written request for a stay of the order of sale in said cause, and intending to avail herself of- the benefit of the action of said counsel, and concealed from the plaintiffs’
The plaintiffs denied that the said Raben and F. J. Engle ever acted as agents for them, or with their knowledge or consent made any representations to either said Catherine Engle or her husband, F. J. Engle, and alleged that they received said note and mortgage in good faith, fully believing that the same had been duly executed, witnessed, acknowledged, and delivered by said Catherine Engle and F. J. Engle as to said defendants.
There was a hearing and trial to the court, which found the issues joined therein for the plaintiffs, W. Y. Morse & Co.; that the said defendant Catherine Engle was not entitled to have vacated and set aside the decree theretofore rendered in said cause in favor of the plaintiffs, and against the defendants; that said Catherine Engle, defendant, was not entitled to a new trial therein, as prayed for in her petition.
The petition of the said Catherine Engle was thereupon overruled and dismissed, a new trial denied, and the decree in said cause affirmed and approved, etc.
The defendant petitioner brings the cause to this court by appeal.
This proceeding was, doubtless, intended to be brought under the provisions of section 602 of the Civil Code, yet I doubt that any of the nine subdivisions of that section is applicable to its facts. I copy the section:
“A district court shall have power to vacate or modify its own judgments or orders after the term at which such judgment or order was made: First — By granting a new trial of the cause within the time and in the manner prescribed in section three hundred and eighteen. Second— By a new trial granted in proceedings against defendants constructively summoned, as provided in section seventy-seven. Third — For mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order. Fourth — For fraud practiced by the successful party in*544 obtaining the judgment or order. Fifth — For erroneous proceedings against an infant, married woman, or person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings. Sixth — For the death of one of the parties before the judgment in the action. Seventh — For unavoidable casualty or misfortune preventing the party from prosecuting or defending. Eighth — For errors in a judgment shown by an infant in twelve months after arriving at full age, as prescribed in section four hundred and forty-two. Ninth — For taking judgments upon warrants of attorney for more than was due to the plaintiff, when the defendant was not summoned, or otherwise legally informed of the time and place of taking such judgment.”
The clause of the above section which is cited by defendant petitioner in the brief of counsel is the seventh — “Unavoidable casualty or misfortune preventing the party from prosecuting or defending.” The unavoidable casualty or misfortune which it is claimed prevented the party from defending, is the fact that when the summons in the action was served on her by the deputy sheriff, by leaving a copy thereof at her place of residence, her husband, F. J. Engle, kept it, and purposely withheld it from her, so that she had no actual notice or knowledge of it. The return of the officer indorsed upon the summons, as returned and in the record, shows personal service upon the said defendant by leaving a copy thereof at her place of residence, in the proper county, and Mr. Whiteside, deputy sheriff, who was sworn as a witness, testified to the making of such service, and F. J. Engle, who was also sworn as a witness for defendant, at the hearing testified that Mr. Whiteside came to him at the flour store and served the summons on him; that he told him (Whiteside) that he would take the other copy up to his (witness’s) wife; he replied, no, that he must serve it in person, and left; that he came up in the evening and came to the door just as witness was in at supper;
Had the defendant been prevented from receiving the copy by any act or procurement of the plaintiffs, then, although the service would have been complete under the statute, it would have come within the fourth clause of the section above copied, “ fraud practiced by the successful party in obtaining the judgment or order,” and would doubtless entitle the defendant to the remedy. But there is no fact proven even tending to connect the plaintiffs with any fraud or deception in the case.
The service of the summons having been made on the petitioning defendant in strict accordance with section 69 of the Code, nothing connected with or incident growing out of such service can be held to be an unavoidable casualty or misfortune preventing the party from defending, within the meaning of the seventh clause of the section.
It is scarcely deemed possible that the petitioning defendant sought to bring her application under the provisions of
It therefore appears that the facts presented by the said ■defendant in and by her petition fail to present a case within any of the provisions of the said sections.
The greater part of the evidence of the defendant chiefly making up the voluminous record is devoted to facts connected with the manner in which the petitioning defendant was induced to execute the note and mortgage upon, which the decree was rendered. There is a large amount of testimony tending to prove that the petitioning defendant was induced to affix her signature to the note and mortgage, also to an assignment of a policy of insurance, by deception, misrepresentation, and fraud on the part of her husband, P. J. Engle, instigated, as is claimed, by John Raben; also that the deputy clerk who executed the certificate of the acknowledgment of the mortgage did not in fact take the acknowledgment of Catherine Engle. But it is sufficient to say that all of the material facts contained in such testimony were contradicted by the testimony of plaintiffs’ witnesses and that the whole evidence taken together fully sustains the finding and order of the district court.
It is not deemed necessary to follow counsel for appellant in the discussion of the homestead law,- in its applica
The order of the district court is affirmed.
Judgment affirmed.