Haynes v. Aultman, Miller & Company

• Decision Date: 15 February 1893
• Docket Number: 5066
• Citation: 54 N.W. 511,36 Neb. 257
• Parties: HENRY W. HAYNES v. AULTMAN, MILLER & COMPANY ET AL
• Court: Nebraska Supreme Court

54 N.W. 511

36 Neb. 257

HENRY W. HAYNES v. AULTMAN, MILLER & COMPANY ET AL

No. 5066

Supreme Court of Nebraska

February 15, 1893

ERROR from the district court of Antelope county. Tried below before POWERS, J.

AFFIRMED.

G. M Cleveland and E. W. Adams, for plaintiff in error.

H. M Uttley, contra.

OPINION

MAXWELL, CH. J.

This is an action to enjoin a judgment. A demurrer was sustained to the amended petition, and the plaintiff not desiring to amend his petition the action was dismissed. The petition is as follows:

"The plaintiff complains of the defendants for that on the 8th day of July, 1880, the defendant Aultman, Miller & Co. obtained three several judgments against the plaintiff in his absence before Michael Costello, a justice of the peace in and for Holt county, Nebraska, copies of the record of which judgment are hereto attached, marked respectively Exhibits A, B, and C, and made a part hereof.

"2. On the 6th day of April, 1881, said defendant Aultman, Miller & Co. caused a transcript of said judgments to be filed in the office of the clerk of the district court of Holt county Nebraska.

"3. No execution was ever issued upon said judgments, or either of them, until the 12th day of December, 1889, as hereinafter stated, and prior to said last mentioned date no attempt was, by said Aultman, Miller & Co., ever made or threatened to be made to enforce said judgments, or either of them, or any part thereof, and this plaintiff believed from the facts hereinafter set out that no attempt ever would be made to collect said judgments or any part thereof, and the said judgments became dormant by a lapse of time and the operations of the law on the 8th day of July, 1885.

"4. That on the 27th day of August, 1888, the defendant Aultman, Miller & Co. filed in the office of the clerk of the district court of Holt county, Nebraska, three separate motions to revive said judgments, copies of which motions are hereto attached, marked Exhibits 1, 2, and 3, and made a part hereof.

"5. That on the 30th day of August, 1888, the Hon. M. P. Kinkaid, judge of the district court of Holt county, Nebraska, made three separate orders commanding the plaintiff herein to show cause why said judgments should not be revived, which orders were, on the 10th day September, 1888, served on the plaintiff herein, copies of which orders are hereto attached, marked respectively Exhibits 4, 5, and 6, and made a part hereof.

"6. That on the 19th day of September, 1888, the plaintiff herein filed in the office of the clerk of the district court of Holt county, Nebraska, three separate answers, copies of which are hereto attached marked respectively Exhibits 7, 8, and 9, and made a part hereof.

"7. That on the 23d day of October, 1889, defendant Aultman, Miller & Co. filed in the office of the clerk of the district court of Holt county, Nebraska, a demurrer to said answers of the plaintiff, a copy of which demurrer is hereto attached, marked Exhibit 10, and made a part hereof.

"8. That on the 9th day of November, 1889, the district court of Holt county, being in session, sustained said demurrer and entered an order and judgment in said court intending to revive said judgment, a copy of which order and judgment is hereto attached, marked Exhibit 11, and made a part hereof.

"9. That on the 12th day of December, 1889, defendant Aultman, Miller & Co. caused an execution to issue out of said district court upon said order and judgment, and caused said execution to be placed in the hands of defendant H. C. McEvony, as sheriff of said county, and said defendant McEvony, as such sheriff, threatens to and is about to levy said execution upon the property, and unless restrained by the order of this court the defendant will cause the property of this plaintiff to be taken, levied upon, and sold to satisfy said execution and said order and judgment.

"10. That the said judgments were rendered by said justice of the peace in plaintiff's absence and without his knowledge and no summons or notice of any kind was ever served upon plaintiff in either of the actions in which said judgments were obtained, nor was a copy of any summons or notice of any kind ever left at the usual place of residence of the plaintiff in Holt county, nor with any members of his family in either of said actions, and plaintiff had no residence in Holt county at the time that the said judgments were rendered, and had no residence in Holt county at the time that the writs of summons in said action purport to have been served as set forth in the transcript of said judgments attached hereto, and no member of plaintiff's family resided in said county of Holt at said...