Janes v. Howell
| Decision Date | 29 June 1893 |
| Citation | 55 N.W. 965,37 Neb. 320 |
| Parties | JANES ET AL. v. HOWELL ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A court of equity will not vacate a judgment at law merely on the ground that the officer's return, that he had served the summons on the defendant to the judgment by leaving a copy of the process at his usual place of residence, was false. It must also be averred and proved that the defendant to the judgment has a meritorious defense to the same.
Commissioners' decision. Appeal from district court, Douglas county; Wakeley, Judge.
Suit by Oscar F. Janes and others against Samuel J. Howell and others to vacate a judgment obtained by defendants. From a decree vacating the judgment, defendants appeal. Reversed.Cornish & Robertson, for appellants.
Brown & Talbott, for appellees.
On January 8, 1889, the appellants recovered judgment against the appellees in the county court of Douglas county. The return of the summons in the case is as follows: The record of the judgment in the county court recites: etc. On June 3, 1889, the appellees filed in the district court of Douglas county their petition, in which they alleged the recovery against them in the county court of the aforesaid judgment; that during the month of January, 1889, and for some time previous thereto, they resided in said Douglas county; and that they had no knowledge of the commencement by the said Howell of an action against them, nor of the rendition of a judgment therein, until after the same was rendered. They further aver that no summons issued in the case was served upon them, in any way or form known to the law, nor was there any notice of any kind given them, or served on them, or either of them, of the commencement of Howell's action; that they had a good and valid defense thereto; that they had no adequate remedy at law,--and prayed that said judgment in favor of said Howell might be set aside, and held for naught, and that all the proceedings had thereunder might be set...
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Smoot v. Judd
...without remanding the case. The opinion was written by Chief Justice Mason. But it is said that in a later case (James v. Howell, 37 Neb. 320, 55 N. W. 965, 40 Am. St. Rep. 494) that court held that relief in equity would be granted if, in addition to showing that the return was false, the ......
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Smoot v. Judd
...on a false return, when in addition to the falsity of the return the plaintiff shows that he has a meritorious defense. In Janes v. Howell, 37 Neb. 320, 55 N.W. 965, which a suit in equity to vacate a judgment on the ground that the return was false, the court said: "Whilst there is some co......
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Ollis v. Orr
... ... 502, 41 Am. Rep. 537; Piggott ... v. Addicks, 3 G. Greene, 427, 56 Am. Dec. 547; Poor ... v. Tuston, 53 Kan. 86, 35 P. 792; Janes v ... Howell, 37 Neb. 320, 40 Am. St. Rep. 494, 55 N.W. 965; ... White v. Crow, 110 U.S. 183, 4 S.Ct. 71; ... Massachusetts Ben. Assn. v ... ...
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Campbell Printing Press & Manufacturing Co. v. Marder, Luse & Co.
...a corporation of a distant state. We therefore think the court erred in finding the judgments valid. Attention is called to Janes v. Howell, 37 Neb. 320, 55 N.W. 965. But that case is not applicable. It belongs to that class which the court has frequently held that one seeking the affirmati......