48 Neb. 904 | Neb. | 1896
The Western Assurance Company of Toronto, Canada, brought this action to the district could of Cass county against Joseph Klein to set aside a judgment rendered by default in said court in favor of Klein and against the assurance company on the 8th day of November, 1898. The district court, after hearing the evidence, entered a decree dismissing the action of the assurance company and it prosecutes to this court a petition in error.
1. The fourth subdivision of section 602 of the Code of Civil Procedure provides that a district court shall have power to vacate or modify its own judgment or orders after the term at which they were rendered “for fraud practiced by the successful party in obtaining the judgment,” and it is upon this subdivision of said section that the action of the assurance company is based. The assurance company alleged in its petition, in substance, that before the answer day in the case of Klein v. The Assurance Company it filed a motion to quash the service in that action; that sometime after that its attorney notified the attorney of Klein of the filing of said motion and inquired of him when, it could be taken up, and that Klein’s attorney answered that he thought he might submit to the motion and asked leave to have the sheriff’s return amended; that its attorney then said to Klein’s attorney that this would be all right, but that when the motion to quash was disposed of he desired to file an answer for the assurance company, as he had one prepared; that there was no hurry about disposing of the motion as the case could not be tried at that — the September — term, and Klein’s attorney responded that the case could not be tried at that term; that he was in no hurry to try it; that he did not wish to try it at that term, as he would
The undisputed evidence shows that the September term of court did not finally adjourn until the 8th day of November; that the motion to quash the service was submitted to and the sheriff’s return amended on the 20th of October; that the court was in session on the 30th of October and again on the 31st of October; that the counsel for the assurance company resided in the city of Plattsmouth, where the court was held; that he knew the court was in session on the morning of the 8th of November; that he was in the court house, but not in the court room, on that morning while the court was in session, and that the assurance company was in default of an answer and had been from the 20th of October. The evidence on behalf of the assurance company tended to support the allegations of its petition, while the evidence on behalf of Klein tended to contradict the allegations of the petition. In other words, the evidence on which the district court based the finding and judgment complained of here was conflicting. It has been so many times said by this court that in cases tried to a court without a jury the finding on questions of fact is entitled to the same weight and the same presumption of correctness as the verdict of a jury that it is unnecessary to cite the cases. Possibly, had we been trying the case, we would have reached a different conclusion from that reached by the district court, but we have no right for that reason to disturb the finding. We have carefully examined all the evidence, and it is sufficient to support the finding made by the district court.
AFFIRMED.