Aetna Cas. & Sur. Co. v. Dickinson, 83-051

• Court: Supreme Court of Nebraska
• Writing for the Court: KRIVOSHA, C.J., WHITE, CAPORALE, and SHANAHAN, JJ., and BRODKEY; KRIVOSHA
• Citation: 216 Neb. 660,345 N.W.2d 8
• Parties: AETNA CASUALTY & SURETY COMPANY, a corporation, Appellee, v. Jack L. DICKINSON et al., Appellants, William G. Dick et al., Appellees.
• Docket Number: No. 83-051,83-051
• Decision Date: 02 March 1984

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345 N.W.2d 8 216 Neb. 660 AETNA CASUALTY & SURETY COMPANY, a corporation, Appellee,
v.
Jack L. DICKINSON et al., Appellants,
William G. Dick et al., Appellees. No. 83-051. Supreme Court of Nebraska. March 2, 1984.

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Syllabus by the Court

1. Judgments: Motions to Vacate. Under Neb.Rev.Stat. § 25-2001 (Reissue 1979), an "unavoidable casualty" is not of itself ground for the granting of a new trial at a subsequent term of court. The "casualty," to be available for that purpose, must be one "preventing the party from prosecuting or defending."

2. Trial: Courts. It is the duty of the courts to prevent abuse of process, unnecessary delays, and dilatory and frivolous proceedings in the administration of justice.

3. Trial: Courts. This court will not tolerate or reward a course of conduct deliberately designed to disrupt the orderly administration of justice.

Brian R. Watkins, Lincoln, for appellants.

Larry Ruth of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, for appellee Aetna.

KRIVOSHA, C.J., WHITE, CAPORALE, and SHANAHAN, JJ., and BRODKEY, J., Retired.

KRIVOSHA, Chief Justice.

This appeal clearly establishes how some individuals believe that litigants may "play games" with the courts, and how this court will not tolerate such behavior. The appeal arises out of a refusal by the district court for Lancaster County, Nebraska, to set [216 Neb. 661] aside a default judgment entered in favor of the appellee Aetna Casualty & Surety Company against the appellants, Jack L. and Virginia Dickinson, husband and wife. In September of 1979 suit was commenced by Aetna against the Dickinsons on a certain guaranty allegedly executed by the Dickinsons in favor of Aetna. The facts underlying the execution of the guaranty are not material to this appeal.

On October 6, 1980, Aetna filed a motion to require the Dickinsons to produce documents bearing their signatures. This was done pursuant to Neb.Rev.Stat. § 25-1267

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.39 (Reissue 1979), since repealed. Specifically, the motion sought the production of 12 documents, all signed in the years 1972, 1973, and 1974, with at least two signatures having been made in each year. On October 24, 1980, the district court for Lancaster County issued an order requiring production of the requested documents by November 17, 1980. The relevance of these documents became more apparent when, on February 5, 1981, the Dickinsons filed an answer admitting all the allegations of Aetna's petition except paragraph 5, which alleged that the Dickinsons had executed the guaranty agreements. Although the Dickinsons had been ordered to produce these documents by November 17, 1980, they did not comply; and on February 6, 1981, Aetna filed a motion in the district court for Lancaster County, seeking an order deeming the signatures admitted as a sanction for failure to comply with the discovery order dated October 24, 1980. For reasons which are not at all clear from the record, the court, on February 10, 1981, overruled the motion for sanctions. The documents, however, had still not been produced, and therefore the court ordered the production of the documents by February 19, 1981, at 3 p.m. On February 20, 1981, the Dickinsons, still not having produced the documents, through their attorney moved for an order suspending the court's order of February 10. As support for the motion, an affidavit was attached, reciting that the Dickinsons [216 Neb. 662] were vacationing in Mexico and the date of their return was unknown. No order was entered in response to this motion. On February 23, 1981, Aetna filed a further motion for sanctions. On March 11, 1981, the trial court sustained Aetna's motion for sanctions and ordered entry of a default judgment against the Dickinsons....