Lacey v. Citizens Lumber & Supply Company
| Decision Date | 12 May 1933 |
| Docket Number | 28537 |
| Citation | 248 N.W. 378,124 Neb. 813 |
| Parties | ARCH LACEY, APPELLEE, v. CITIZENS LUMBER & SUPPLY COMPANY ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Harlan county: LEWIS H BLACKLEDGE, JUDGE. Reversed, with directions.
REVERSED.
Syllabus by the Court.
1. In furtherance of justice, district courts may vacate or modify their own judgments at any time during the term at which they are rendered.
2. Ordinarily, a judgment entered by default should be set aside upon application promptly made at the same term, together with the tender of an answer disclosing meritorious defense but upon such reasonable terms as the court may impose.
Appeal from District Court, Harlan County; Blackledge, Judge.
Action by Arch Lacey against the Citizens' Lumber & Supply Company and others. From an order overruling a motion to vacate a default judgment, and for permission to file an answer, the named defendant appeals.
Reversed, with directions.
Chambers & Holland and Howard S. Foe, for appellants.
Shelburn & Russell, contra.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ.
This is an appeal from an order of the district court, overruling defendants' motion to vacate a judgment entered against them by default, and for permission to file an answer.
The action was begun in October, 1931. On or before answer day, defendants filed a motion to require plaintiff to make his petition more definite and certain. November 30, 1931, this motion was sustained in part, the court directing plaintiff to amend the petition by interlineation. On December 7 plaintiff complied with the order and amended his petition in the particulars required by the court's order. Thereafter there was correspondence between counsel for the respective parties regarding a possible compromise and settlement of the case. Offers and counter offers were made, but the parties were unable to agree upon a settlement of the controversy. This correspondence lasted until about December 23, 1931. In the meantime counsel for defendants, residing in Lincoln, wrote two or three letters to the clerk of the court at Alma, Nebraska, asking to be advised as to what time had been fixed for pleadings and when the next jury term of court would be held. The only response which he received to these letters was a copy of the bar docket for the next term, which opened on January 25, 1932.
Counsel for defendants evidently overlooked the necessity for having an answer on file. On January 25, 1932, being the first day of the new term of court, without notice to defendants or their counsel, plaintiff called up the case, took a default and procured the entry of judgment. Counsel for defendants did not ascertain this fact until about a week later. He then filed motion, supported by affidavit, setting forth the requests made upon the clerk of the court for information and the fact that negotiations for a compromise settlement had been pending, and that, through oversight of counsel, he had neglected to file an answer within the time required by law. After a hearing upon this motion, it was overruled, and defendants prosecute this appeal.
It thus appears that, through the neglect or oversight of their counsel, defendan...
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