Kulhanek v. Kulhanek
| Decision Date | 15 July 1921 |
| Docket Number | 21617 |
| Citation | 184 N.W. 139,106 Neb. 595 |
| Parties | FRANCES KULHANEK ET AL., APPELLEES, v. EMMA KULHANEK ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Reversed and dismissed.
Judgment and decree of the trial court reversed and case dismissed at plaintiff's costs.
A. H Murdock, for appellants.
James E. Bednar and Joseph T. Votava, contra.
Heard before LETTON, DAY and DEAN, JJ., CLEMENTS and MORNING District Judges.
On November 25, 1919, Emma Kulhanek, defendant in the present suit, obtained a judgment for $ 2,500 by default in the district court for Douglas county, Nebraska, against the plaintiffs herein for the alleged alienation of the affections of her husband, Joseph Kulhanek. The plaintiffs are the father and stepmother of said Joseph Kulhanek. An execution issued on said judgment was levied on plaintiffs' property and on February 24, 1920, said property was sold by the sheriff to satisfy said judgment. On May 24, 1920, this action was brought to vacate and set aside said judgment and sale and to permit the plaintiffs to answer and make their defense to the action in which said judgment was obtained. The trial court found for plaintiffs and entered a decree setting aside said judgment and sale and granting them a new trial in said case. From said finding and judgment, defendants herein appeal.
In plaintiffs' petition it is alleged that, after the commencement of said alienation action, said Emma Kulhanek agreed with plaintiffs to drop said suit; that, relying on said agreement, plaintiffs paid no further attention thereto; that, in violation of her said agreement, said Emma Kulhanek fraudulently caused said judgment to be entered without any notice to or knowledge of the plaintiffs, and that plaintiffs did not know of the entry of said judgment until after said sale was made. The foregoing is the substance of all the allegations of the petition stating the ground or reason for setting aside said judgment. This is clearly a pleading of "fraud practised by the successful party in obtaining the judgment or order," which is one of the grounds for vacating a judgment under the provision of subdivision 4, sec. 8207, Rev. St. 1913. Counsel in their brief also assert that the petition alleges unavoidable casualty or misfortune within the meaning of subdivision 7 of said section, but we find no allegations in the petition which sustain said contention, and, if there were such, the record contains no evidence to support such allegations. Plaintiffs' petition therefore sets up but a single cause of action or ground for setting aside said judgment and sale, and that is the alleged fraud of Emma Kulhanek in procuring the judgment to be entered in violation of her agreement to drop the case. The making of this alleged agreement was denied by the answer and the issue thus joined was decided by the trial court in favor of the defendants.
There is not a scintilla of competent evidence in the record to support plaintiffs' allegation of fraud on the part of the defendant and the trial court rightfully found that said Emma Kulhanek "acted in entire good faith in having judgment entered against the plaintiffs, * * * and in causing an execution to be issued and levied by the sheriff on the property of the plaintiffs herein, and was entirely without fraud in any of her proceedings in said action." This finding for the defendants on the only ground or reason for setting aside said judgment alleged in the petition would seem to compel a judgment in their favor. But the trial court proceeded to make another finding, as follows: "The court further finds that the plaintiffs herein relied upon the representation made by their son, Joseph Kulhanek, to the effect that he had settled the cause of action so filed against them by the defendant, Emma Kulhanek, and that by reason of their relying upon the representations so made by their son, Joseph Kulhanek, they suffered a judgment to be entered against them." And it is upon this finding that the judgment for plaintiffs herein is based. The court also found that "Emma Kulhanek knew nothing of the representations made by Joseph Kulhanek to the plaintiffs herein." There is evidence in the record, admitted over the objections of defendants, which supports the above finding in favor of plaintiffs, but there are no allegations in the petition which justify the admission of such evidence or upon which such a finding can be based.
It is an elementary rule of law that the allegations and proof must agree. "There can be no recovery if there be a material variance between the allegations and the proof." Elliott v. Carter White-Lead Co., 53 Neb. 458, 73 N.W. 948. "A party is not allowed to allege in his petition one cause of action and prove another upon the trial." Imhoff v. House, 36 Neb. 28, 53 N.W. 1032. "A party will not be permitted to plead one cause of action and upon the trial rely upon proof establishing a different cause." Luce v. Foster, 42 Neb. 818, 60 N.W. 1027. The action of the trial court in making a finding of facts not pleaded and basing its judgment thereon was a violation of the foregoing rule and clearly erroneous.
If the evidence on which such finding is based had been introduced without objection, we might permit the plaintiffs to amend their petition to conform to the proof, but as it was all admitted over the defendants' objections this cannot rightfully be done.
But even if the facts so found had been pleaded in the petition the pleadings and evidence would not have been sufficient to support the judgment of the trial court. The facts so found are to the effect that plaintiffs suffered the judgment sought to be set aside to be entered against them because they relied upon the statements of their son, Joseph Kulhanek, that he had settled the action in which such judgment was obtained and...
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