Fisk v. Thorp
| Citation | 60 Neb. 713,84 N.W. 79 |
| Parties | FISK v. THORP ET AL. |
| Decision Date | 08 November 1900 |
| Court | Supreme Court of Nebraska |
1. In the absence of a proper bill of exceptions, on error to this court it will be conclusively presumed that there was introduced before the trial court sufficient evidence to sustain the order or judgment rendered.
2. By appearing in a case and invoking the powers of the court to set aside a judgment as having been irregularly obtained, jurisdiction is given to the court over the parties appearing as to all proceedings had in the case.
3. Such appearance in no way militates against the authority of the court to hear and determine an application to vacate a judgment because of an alleged irregularity in obtaining it.
4. Under the provisions of section 602 et seq. of the Civil Code, in a proceeding to vacate a judgment on account of irregularity in obtaining it, it is not necessary to tender an answer with a motion to vacate such judgment. Under these provisions the court may first try and determine upon the grounds to vacate, and then determine whether there is a valid defense. This may be found from the evidence offered in support of the motion filed, asking the vacation of the judgment.
Error to district court, Sioux county; Westover, Judge.
Action by Anna L. Fisk against Russell Thorp, Jr., and others. Judgment for defendants, and plaintiff brings error. Affirmed.Allen G. Fisher, for plaintiff in error.
A. W. Crites, for defendants in error.
We are asked in this case to review the proceedings had in the district court on a motion to set aside and vacate a deficiency judgment rendered against defendants in error, and to reverse the order entered sustaining such motion. The motion was filed after the term at which the judgment was rendered, and the application is made under the provisions of subdivision 3, § 602, Civ. Code, on the ground of “irregularity in obtaining a judgment.” By error proceedings from a similar order of the trial court on the same motion, the case has once before been here for review. In the opinion then rendered it was held that the court had no jurisdiction at chambers to hear and decide the motion, and was also without power to order a change of venue of the hearing on its own motion; and the order entered vacating the judgment was reversed, and the cause remanded for further proceedings. Fisk v. Thorp, 51 Neb. 1, 70 N. W. 498. The principal error in the present proceedings alleged and relied on, as argued in the brief of counsel for plaintiff in error, relates to the alleged insufficiency of the evidence to support the order entered by the trial court vacating the deficiency judgment. We are precluded from examining into or considering the alleged error complained of in this respect, for the reason that no proper bill of exceptions, containing the evidence on which the trial judge acted, has been settled, allowed, and preserved, as a part of the record in the case. We have heretofore, on the application of defendants in error, quashed the purported bill of exceptions presented as a part of the record. In its absence, we are without means to determine upon what evidence the court acted; and all presumptions in the case should, under the uniform holdings of this court, be resolved in favor of the correctness of the orders and judgments of the trial court. In the absence of a proper bill of exceptions, it will be conclusively presumed that...
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