Hartford Fire Ins. Co. v. Meyer

• Decision Date: 08 July 1890
• Citation: 30 Neb. 135,46 N.W. 292
• Parties: HARTFORD FIRE INS. CO. v. MEYER ET AL.
• Court: Nebraska Supreme Court

30 Neb. 135

46 N.W. 292

HARTFORD FIRE INS. CO.

v.MEYER ET AL.

Supreme Court of Nebraska.

July 8, 1890.

Syllabus by the Court.

1. In an action to enjoin a judgment, upon the grounds that the plaintiff has a valid defense to the same, and that it was rendered through a breach of duty of his attorney, the facts constituting the alleged defense must be pleaded, so that it may appear that, on a re-examination of the case, the result would probably be different.

2. Objections to proof of loss on a policy of insurance must be specific, and not general, as the proof or any part thereof may be waived.

3. Upon the pleadings and proof, held, that the judgment was right.

Appeal from district court, Cass county; CHAPMAN, Judge.J. R. Webster, E. P. Holmes, and S. P. Vanatta, for appellant.

J. B. Strode and Byron Clark, for appellees.

MAXWELL, J.

This is an action to enjoin a judgment rendered in the district court of Cass county. It appears from the record that in 1883 one William R. Carter was engaged in the mercantile business in Cass, and had his stock insured in the Hartford company for the sum of $650; that during the spring of that year, and while said policy was in full force, the goods were greatly injured or destroyed by fire; that the firm of Cook, Phillips & Wells had a chattel mortgage on said stock for the sum of $228, and after the loss they filed a petition in equity enjoining the plaintiff from adjusting the loss and paying the same to Carter or the defendants, and praying, in effect, that a sufficient amount of the insurance be assigned to them to satisfy their claim. The defendants employed a firm of attorneys to defend their rights in the premises, and the plaintiff employed the senior member of said firm to protect its rights. The attorneys named procured a dissolution of the temporary injunction, and on the trial of the main issue amended the defendants' answer, which was in the nature of a cross-bill, by adding, “and thereupon, as by said policy of insurance required, within the time, filed fully verified proofs of his loss, amounting to about $650, with their agent D. H. Wheeler, and that he complied in all respects with the conditions of said policy of insurance;” and also amended the prayer; and on the answer to the petition for the injunction took judgment against the plaintiff, and in favor of the defendant, as assignee of the policy, for the sum of $300. This is the judgment which is now sought to be enjoined. The grounds upon which this relief is sought, as set forth in the petition, are as follows: “Plaintiff further avers that it had a full and complete defense to said action as against said policy of insurance, and was under no obligation to repay the same; that the said Carter had obtained said policy by fraud and misrepresen tations, and that said loss was not a bona fide loss, of all which facts they informed their said attorneys, [giving names,] and instructed and directed them to plead and so make appear in said cause; that said Carter failed to furnish...