Cadwallader v. McClay
| Decision Date | 29 June 1893 |
| Parties | CADWALLADER v. MCCLAY, SHERIFF, ET AL. |
| Court | Nebraska Supreme Court |
1. A judgment will be set aside when it was taken after a settlement between the parties, and contrary to plaintiff's promise to dismiss the action, the defendant having relied upon the promise, and so suffered default.
2. The defendant was justified in relying upon such promise, although the plaintiff was an infant, he possessing apparently good judgment and discretion, and having been, by his father, who appeared in the action as his next friend, permitted to transact the business out of which the action rose.
3. Where none of the special proceedings provided by the Code is in such a case available, an action in equity will lie to enjoin against the enforcement of such a judgment, and to declare its cancellation.
Commissioners' decision. Appeal from district court, Lancaster county; Hall, Judge.
Suit by Charles M. Cadwallader against Samuel McClay, sheriff, and others, for the purpose of vacating a judgment, and enjoining enforcement thereof. From a decree granting the relief, defendants appeal. Affirmed.J. S. Bishop and Pound & Burr, for appellants.
Reese & Gilkeson, for appellee.
Charles T. Weber, an infant, by his father, as next friend, recovered a judgment before the justice of the peace in Lancaster county for $107, and costs. A transcript of this judgment was filed in the office of the clerk of the district court, and, after certain proceedings in aid of execution, an execution was levied upon real property of Cadwallader, occupied by him and his family as a homestead. Before the sale this suit was begun by Cadwallader against the sheriff of Lancaster county and Weber, for the purpose of vacating the judgment, and enjoining the enforcement thereof. D. L. Love was permitted to intervene as assignee of Weber's judgment.
The plaintiff claimed, first, that the property levied upon was exempt from execution as a homestead. The defendants met this by showing that the judgment upon which the execution was issued was for wages owed by Cadwallader to Weber, and claimed that a homestead was not exempt from execution upon such a judgment. This question we need not determine, in view of the conclusions reached on the other branch of the case.
The plaintiff contended, in support of his application to have the judgment canceled, that, pending the action before the justice of the peace, and before judgment was rendered, he had a conference with Weber, in which their accounts were looked over, and a settlement reached, by which it was ascertained that Weber's account was overdrawn, and that a small balance was due from Weber to plaintiff; that thereupon Weber promised that the suit should be dismissed; that Cadwallader relied upon...
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