Elstermeyer v. City of Cheyenne
Citation | 120 P.2d 599,57 Wyo. 421 |
Decision Date | 05 January 1942 |
Docket Number | 2198 |
Parties | ELSTERMEYER v. CITY OF CHEYENNE ET AL |
Court | Wyoming Supreme Court |
APPEAL from the District Court, Laramie County; H. R. CHRISTMAS Judge.
On petition for rehearing. For former opinion, see 57 Wyo. 256 116 P.2d 231.
Rehearing denied.
Edwin W. Baron of Cheyenne for respondent.
One of the appellants, Edwin W. Baron, has filed a petition for a rehearing in this cause. It is again urged that no facts were disclosed in plaintiff's amended petition setting out a meritorious defense to the City's attempted foreclosure of its alleged lien for the improvement assessment. The question at once arises what should be regarded as a meritorious defense. I Black on Judgments (2d Ed.) 540, Sec. 348, says that:
In Russell v. Foley, 278 Mass. 145, 179 N.E. 619, the court, discussing this question, remarked:
The view expressed in 1 Freeman on Judgments (5th Ed.) 567, Sec. 287, is that:
"By a defense on the merits is meant one which has merits that the law recognizes and to which it will give effect, and which if established would produce a materially different result."
The Supreme Court of Colorado in Gumaer v. Bell, 51 Colo. 473, 119 P. 681, discusses this subject in this language:
Citing many authorities the Supreme Court of Nebraska in Hartford Fire Insurance Co. v. Meyer, 30 Neb. 135, 46 N.W. 292, in similar vein declares that:
"It must appear that, on a re-examination and retrial of the cause, the result would probably be different."
Tested by these rules did the plaintiff's amended petition herein set forth facts which would have produced a materially different result in the City's attempted lien foreclosure action against Mrs. Elstermeyer? We certainly think so. If the pleaded facts had been proven in that action, as they were in the cause before us, no judgment of foreclosure against Mrs. Elstermeyer could have been properly entered and she would have had the right to redeem the property involved from any such foreclosure proceeding. She was entitled to be properly and legally notified of the City's attempt to take her property from her in any foreclosure of its asserted lien. This, as indicated in the original opinion heretofore filed, was not done.
Additionally, it may be pointed out that notwithstanding the case of Citizens National Bank v. Union Central Life Insurance Co., 12 Ohio Cir. Ct. R. (N. S.) 401, from which quotation was made in the original opinion heretofore filed in the case at bar, there would appear to be substantial authority contrary to the view expressed in that decision, concerning the necessity of alleging a meritorious defense under circumstances such as appear herein.
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