Keeler v. Elston

• Citation: 22 Neb. 310,34 N.W. 891
• Parties: KEELER v. ELSTON.
• Decision Date: 02 November 1887
• Court: Supreme Court of Nebraska

22 Neb. 310

34 N.W. 891

KEELER

v.ELSTON.

Supreme Court of Nebraska.

November 2, 1887.

Syllabus by the Court.

The judgment of a state court duly authenticated as prescribed by law, where there is jurisdiction, is conclusive as an adjudication upon the subject-matter of the suit But fraud perpetrated in securing such judgment, and by which it was obtained, would be a good defense to an action thereon if properly pleaded in the answer, and the decision of an inferior court overruling a demurrer thereto will be affirmed.

Error to Platte county; POST, Judge.

McAllister Bros., for plaintiff.

George G. Bowman, for defendant.

REESE, J.

This action was originally commenced in the county court of Platte county. It was founded upon a judgment rendered in favor of plaintiff, and against defendant, by the district court of Dodge county, Minnesota, in an action there pending between the parties. In the second count of defendant's answer, filed in the county court, it is alleged as a defense that the judgment of the Minnesota court was obtained by fraud; that the action was founded upon a promissory note which had been paid. It is averred that the action was commenced, and service had upon defendant, while he was temporarily visiting that state; but that, after service of process, he called the attention of plaintiff to the fact of payment previously made, and the circumstances accompanying such payment; whereupon plaintiff admitted the payment, and, upon investigation, he was satisfied that he had no cause of action against defendant; that plaintiff then promised and agreed “to go at once, and dismiss said action, and that he would not further prosecute the same; and that defendant need not employ an attorney, nor pay any further attention to it. Thereupon defendant, relying upon such promise and agreement, and believing that said action would be dismissed at once by said plaintiff,” returned to his home in Nebraska, and failed to appear and defend said action; that plaintiff, in violation of his promise and agreement, did not dismiss the action, but fraudulently, and without the knowledge of defendant, procured the rendition of the judgment. Plaintiff demurred to this count of the answer as not stating a defense. The county court overruled the demurrer, and, plaintiff refusing to plead further, the cause was dismissed. The cause was then removed to the district court by proceedings in error, where the judgment of the county court was affirmed. For the purpose of obtaining a review of that judgment plaintiff prosecutes error here.

As is shown by the foregoing, the only question presented is, can a judgment be successfully attacked in this collateral way, upon the ground that it was obtained by the fraudulent acts of plaintiff? So far as its effects upon the judgment are concerned,...