Kepley v. Irwin

• Decision Date: 23 May 1883
• Citation: 15 N.W. 719,14 Neb. 300
• Parties: HENRY B. KEPLEY, PLAINTIFF IN ERROR, v. SAMUEL IRWIN, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

15 N.W. 719

14 Neb. 300

HENRY B. KEPLEY, PLAINTIFF IN ERROR, v. SAMUEL IRWIN, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 23, 1883

ERROR to the district court for Otoe county.The action was one of ejectment, brought by Henry B. Kepley against Nelson Tredo and Samuel Irwin.Tredo was in possession as tenant of the land, having rented the same of John Irwin, acting as the agent of Samuel Irwin.Service was had on Tredo personally and on Samuel Irwin, by publication.S. J. Stevenson appeared as attorney for the latter, and filed an answer, verified by John Irwin, agent for Samuel Irwin.Afterwards, when the cause was called for trial, Stevenson obtained leave to withdraw his appearance and answer, and judgment was rendered April 18, 1878, for Kepley.September 19, 1879, affidavit and showing of Samuel Irwin to set aside judgment filed, and October 13, 1881, the original judgment set aside by POUND J., and Irwin permitted to answer on payment of costs to that date.From the order setting aside said judgment Kepley brought the case here for review.

ORDER AFFIRMED.

M. L Hayward and Henry B. Kepley, for plaintiff in error, on question of appearance, cited: Filkin v. Byrne,72 Ill. 101.Dart v. Hercules,34 Ill. 395. Am Ins. Co. v. Oakley,9 Paige 498.Abbott v. Dutton,44 Vt. 546.Shrowdenbeck v. Ins. Co. ,15 Wis. 700.Martin v. Judd, 60 Ill. 78.

E. F. Warren(Watson & Wodehouse with him), for defendant in error, cited: Weeks on Attorneys, sec. 198.Denton v. Noyes,6 Johns. 298.Critchfield v. Porter,3 Ohio 518.Frye v. Calhoun,14 Ill. 132.Bryant v. Williams,21 Iowa 329.Shelton v. Tiffin,6 How. 163.Freeman on Judgments, § 499.

OPINION

LAKE, CH. J.

The questions presented in this case arose under sec. 82 of the code of civil procedure.It is claimed that the court below erred in opening the judgment and letting the defendant in with his defense.The service on the defendant was by publication, or what by the code is termed constructive.On this point there is no dispute.The really vital question is simply whether the nominal appearance made by S. J. Stevenson as attorney of the defendant, and filing an answer in his name, was authorized.On the showing made the court below held that it was not, and we are now called upon to review that decision.

The section of the code referred to, like every other part of it, should receive a liberal construction, to the end that substantial justice may be done to litigants.And especially so should be the construction as to those provisions respecting the appearance of parties, and the making up of issues, to the end that a full and fair hearing of cases upon their merits may be had.This court, in reviewing the doings of inferior courts, has always been disposed to, and does now, regard liberal rulings in these particulars favorably.In doing so we believe we represent the spirit of the code, which in its very first section declares that: "Its provisions and all proceedings under it shall be liberally construed, with a view to promote its object and assist parties in obtaining justice."

Sec. 82 provides that: "A party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may, at any time within five years after the date of the judgment or order, have the same opened and be let in to defend; before the judgment or order shall be opened the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition, pay all costs if the court require them to be paid, and make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; but the title to any property, the subject of the judgment or order sought to be opened, which by it or in consequence of it, shall have passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall they affect the title to any property sold before judgment under an attachment.The adverse party, on the hearing of an application to open a judgment or order, as provided in this section, shall be allowed to present counter affidavits, to show that during the pendency of the action the applicant had notice thereof in time to appear in court and make his defense."

It is practically conceded by the plaintiff that every requirement of this section to authorize the opening of the judgment existed, except that of the defendant's want of actual notice of the pendency of the action.On this point the defendant filed several affidavits, among them his own, by which it seems to ushe made a showing bringing himself fairly within the section of the statute above quoted.In his own affidavit he says, expressly, that he was a resident of the state of Ohio during all of the time of the pendency of the action, and did not know of it "till about the 30th day of March, 1879."Of the appearance and answer made in his name by S. J. Stevenson, he says that he"had never employed an attorney to defend said suit, nor had affiant authorized any person or agent to employ attorneys for him, or to appear in any litigation in Otoe county, Nebraska."And as to this appearance, which seems to have been withdrawn by leave of the court, S. J. Stevenson, the attorney, says in his affidavit that what he did in the case was done "at the request of John Irwin."John Irwin swears that he"spoke to S. J. Stevenson, attorney, about the matter without knowing what should be done, and without having any authority to employ an attorney for Samuel Irwin, or either of said defendants," etc.

Opposed to this, on the question of the right of Stevenson to appear in the case, there was produced a power of attorney from Samuel Irwin to John...