Brandeen v. Beale

• Decision Date: 27 June 1928
• Docket Number: No. 26382.,26382.
• Citation: 117 Neb. 291,220 N.W. 298
• Parties: BRANDEEN v. BEALE ET AL.
• Court: Nebraska Supreme Court

117 Neb. 291

220 N.W. 298

BRANDEEN

v.BEALE ET AL.

No. 26382.

Supreme Court of Nebraska.

June 27, 1928.

Syllabus by the Court.

A motion to strike a petition from the files because the facts pleaded are insufficient, having been sustained by the court, is in effect a general demurrer; it admits the truth of all well-pleaded facts.

In a proceeding brought under section 9160, Comp. St. 1922, to modify or vacate a judgment on account of fraud, after the two years from the rendition of the judgment, if the petition shows that the facts were discovered within the period of limitation and fails to show any good reason why the two years should be extended, it is not error for the court, on motion or demurrer, to strike the petition from the files.

Section 9160, Comp. St. 1922, in subdivision 3, gives power to the district court after the term to vacate or modify its judgments for irregularity in obtaining judgment.Under section 9167, the statute of limitations is fixed at three years, and under section 9168 the provisions of the sections are applicable to the supreme and county courts.

Section 9160, Comp. St. 1922, may not be invoked by a litigant in a separate suit in equity to vacate or modify a judgment for irregularity in obtaining it, after such judgment, in a suit between the same parties, on the same issues, has been pronounced by this court as regularly obtained.

Appeal from District Court, Lancaster County; Shepherd, Judge.

Action by August Brandeen against Ralph M. Beale and another.Judgment of dismissal, and plaintiff appeals.Affirmed.John S. Bishop and C. C. Flansburg, both of Lincoln, for appellant.

Sterling F. Mutz, Claude S. Wilson, Roy F. Gilkeson, and Hyman Rosenberg, all of Lincoln, for appellees.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, and HOWELL, JJ., and PROUDFIT and REDICK, District Judges.

GOSS, C. J.

Plaintiff appeals from an order, made December 1, 1927, dismissing his action against the defendants, upon the plaintiff refusing to plead further and electing to stand upon his petition after the court had made orders, on October 6, 1927, sustaining separate motions of defendants to strikethe plaintiff's petition from the files.

This is the fourth appearance of this litigation in this court in one form or another.The prior occasions were (1) in Brandeen v. Beale, 110 Neb. 686, 194 N. W. 787, decided July 13, 1923, lost by plaintiff in the district court, wherein Brandeen appealed and secured a reversal on the ground that the guardianship proceedings attacked by him were void; (2) in Brandeen v. Lau, 113 Neb. 34, 201 N. W. 665, decided December 31, 1924, won by plaintiff in the district court, wherein defendants appealed and secured a reversal on the ground that a nunc pro tunc order made in the guardianship proceedings, after the mandate in the first case went down, should have been recognized by the district court in error proceedings from the county court; and (3) in Brandeen v. Beale, No. 25436, a commissioner opinion, decided October 13, 1926, not reported, but which is the law of that case under the statute relating to opinions written by the commission and approved by the court.Laws 1927, c. 69.In that case, Brandeen had appealed from an order of the district court dismissing his action against John D. Lau and H. P. Lau Company, on motion of the defendants for judgment on the pleadings, without prejudice to his proceeding in the county court.The petition in that suit was for damages against the defendants for a conspiracy to destroy his business.The defendants had answered setting up as defenses the guardianship proceedings, including the nunc pro tunc proceedings of January 14, 1924.The plaintiff replied, challenging the guardianship of Beale and the nunc pro tunc decree in those proceedings in almost the identical manner he has attacked them here.The opinion affirmed the judgment of the district court sustaining the motion of defendants for judgment on the pleadings.In that opinion the court said:

“The appellant, if he felt that a fraud had been practiced upon him in the procurement of a judgment appointing a guardian over him, had a clear and statutory remedy.Section 9160, Comp. St. 1922, provides that a district court shall have power to vacate or modify its own judgments and orders after term, among other things--‘For fraud practiced by the successful party in obtaining the judgment.’Section 9168 provides that the provisions contained in section 9160 apply also to the supreme and county courts.”

It seems that Brandeen then brought this action in the county court, following the suggestion above quoted from the opinion in the last case.He apparently, however, relies not only on that fourth subdivision thus quoted but also on that portion of the third subdivision of section 9160 giving power to the county and district courts to vacate or modify its judgments after term for “irregularity in obtaining a judgment or order.”The transscript alone does not contain all of the related and helpful facts required to make this rather confusing case clearer.In the briefs of both parties, however, we discover statements to the effect that the proceedings were begun in the county court after the mandate in the last case before our court(No. 25436, heretofore quoted) had been made effective in the district and county courts by proper entries.Brandeen evidently filed in the county court, on January 5, 1927, an application or petition that the nunc pro tunc order obtained by Beale, appointing him guardian of Brandeen, be set aside because induced by fraud of the defendants and because irregularly made.Ultimately, on August 5, 1927, the county court sustained the motion of defendants to strike the petition for the reason it showed on its face that plaintiff was not entitled to bring or maintain the action.Brandeen's transcript on appeal from the county court was filed August 15, 1927, in the district court.

The transcript of the district court proceedings shows that the petition was filed August 25, 1927; that on October 6, 1927, the court sustained the separate motions of the defendants Lau and Beale to strike the petition from the files on the ground it shows on its face that plaintiff is not entitled to bring or maintain the action; and that, on December 1, 1927, the plaintiff refusing to plead further and electing to stand on his petition, the case was dismissed.

[1] At most, there are only two questions at issue in the case: Whether the court erred in striking the petition from the files; and whether the court erred in dismissing the case.In reality they are one.In effect the parties assent to this in their arguments.They agree, also, that a motion to strike a petition from the files, because the facts pleaded are insufficient, having been sustained by the court, is in effect a general demurrer; it admits the truth of all well-pleaded facts.

Many things are discussed in the briefs.It seems to us our only task is to discover what facts are well pleaded in the petition and to decide whether they sustain plaintiff's cause of action against the defendants.

The plaintiff alleged that, on June 6, 1921, the defendants filed in the county court a petition for the appointment of a guardian for the plaintiff, a copy of which is attached and made a part of the petition.An examination of this copy shows that the petitioner was described merely as “a creditor of the said August Brandeen.”The petition further alleges the issuance of notice of hearing on the same day as the filing of the petition, served on the following day on plaintiff; that the filing of the petition and the subsequent proceedings in the county court“were a part of a fraud or conspiracy on the part of the defendants to unlawfully obtain possession of the property of the plaintiff and to deprive him of his property and liberty and condemn him to a civil death;” that thereafter, between June 7 and June 22, 1921, “in furtherance of said conspiracy and in order to induce plaintiff not to appear in said guardianship proceedings, the defendants, orally, falsely and fraudulently represented to the plaintiff that said petition for the appointment of a guardian was filed through inadvertence, error, or mistake and would be withdrawn and said proceedings dismissed; that the plaintiff should not worry or trouble himself about said petition or proceedings, did not need to go to any expense in the matter, and did not need to attend the hearing on June 22, 1921, or be represented thereat, because the defendants would dismiss said proceedings;” believing the representations true and relying thereon, plaintiff did not appear to oppose the appointment, he believed the guardianship proceedings had been dismissed, and would have appeared in opposition had he not relied upon said promises; that he had and has a complete defense to the application for guardianship, that he was at all times mentally and physically strong, able to manage his business, and was in fact operating his business and managing his property, as defendants well knew, and that said appointment was procured by false swearing and by the fraud and conspiracy of the defendants as alleged; that on June 22, 1921, the defendants, in violation of their representations and promises to have the guardianship proceedings dismissed, secretly and wrongfully appeared in the county court, concealed from and failed to disclose to said court the facts of their inducement to plaintiff not to appear and that plaintiff was competent and personally conducting his business, but they falsely and fraudulently represented that the plaintiff was incompetent, and that he consented to or desired the appointment of a guardian; that by reason of said fraud and deceit the county court was misled, deceived and tricked...