9 Neb. 169 | Neb. | 1879
This is a petition in error to reverse a judgment of the district court of Platte county dismissing the plaintiff’s petition.
The petition alleges in substance that on the 2d day of July, 1878, Morgan and G-allagher recovered a judgment in the county court of Platte county against one John G-. Compton and the plaintiff, for the sum of $360, upon two promissory notes purporting to have been signed by said Compton and plaintiff; that her signature to said notes was a forgery; that in 1876 she did sign a note as surety with said Compton in favor of the defendants, and that in March prior to the suit she received a notice from them of its non-payment.
The' amount of this note is not stated, nor is it distinctly alleged that the plaintiff supposed the suit to be based upon this note, and so failed to make her defense; but this is fairly to be inferred from, the petition.
The petition further alleges that said defendants “as she is informed, and believes, and so charges the fact to be, had good reason to believe, and did believe, that said notes were forgeries.”
To authorize the interference of a court of equity in such a case, it must appear that it is against conscience to permit the judgment to be enforced, and also that the plaintiff was prevented from making her defense by accident, mistake, surprise, or by fraud of the adverse party, and that she has not been guilty of neglect in not making her defense.
The question of diligence on the part of the plaintiff however, is not so clear. The allegations of the petitioner upon that point are not as definite as could be desired, and had a motion been made in the court below, requiring the plaintiff to state the facts specifically, it should have been sustained. But sufficient appears to show that the plaintiff supposed the suit to be upon the note given in 1876, and having no defense to that note, she failed to appear. This is a- mistake of fact from which a court of equity will grant relief in a proper case, more particularly so when it is alleged that the parties prosecuting the suit were aware that the notes sued on were forgeries. The plaintiff had the right to presume that the note with her genuine signature was the one upon which the suit was instituted, and it was not necessary to suppose that the crime of forgery had been committed by affixing her name to notes of which she had no knowledge. The judgment of the district court is reversed, and the cause remanded for further proceedings.
Reversed and remanded,
