Lashmett v. Prall

• Decision Date: 05 March 1909
• Docket Number: 15,537
• Citation: 120 N.W. 206,83 Neb. 732
• Parties: WILLIAM D. LASHMETT, APPELLEE, v. JOHN PRALL, APPELLANT
• Court: Nebraska Supreme Court

120 N.W. 206

83 Neb. 732

WILLIAM D. LASHMETT, APPELLEE, v. JOHN PRALL, APPELLANT

No. 15,537

Supreme Court of Nebraska

March 5, 1909

APPEAL from the district court for Valley county: JAMES R. HANNA JUDGE. Affirmed.

AFFIRMED.

O. A Abbott, for appellant.

A. M Robbins and C. I. Bragg, contra.

CALKINS, C. DUFFIE, EPPERSON and GOOD, CC., concur.

OPINION

CALKINS, C.

This was an application to revive a judgment which had become dormant. It appears that, after the recovery of the judgment, a transcript thereof was filed in Loup county, where the plaintiff prosecuted a suit in the nature of a creditor's bill to set aside certain transfers of land which it was alleged the defendant had made without consideration and in fraud of the rights of the plaintiff as a judgment creditor. In such action the defendant interposed the defense that the plaintiff was indebted to him upon a promissory note for a sum exceeding the amount of such judgment. The district court found for the plaintiff, and the case was brought here, where it was held in an opinion by AMES, C. (96 N.W. 152, 2 Neb. Unoff. 284), that, since the plaintiff was indebted to defendant in a sum equal to or greater than the amount of the judgment, the legal obstacles which he was invoking the aid of a court of equity to remove were inflicting no injustice upon him, and he was not therefore entitled to any relief. The judgment of the district court was thereupon reversed and the action dismissed.

The proceedings of revivor in the instant case were begun in January, 1906, and the defendant, in response to an order to show cause why the judgment should not be revived, set up the proceedings and opinion in the former case, and alleged that the plaintiff was thereby estopped and precluded from alleging or proving that any amount was due plaintiff upon said judgment. There was no allegation in the answer that the note was still owned by defendant, nor that it remained unpaid; but the plaintiff, in a reply filed by him, alleged that more than five years had elapsed "since said pretended note has matured," and that no action had been commenced on the same. This reply, while admitting the proceedings in the former case both in the district and supreme courts practically as alleged in the answer, further set up that, after the filing of said opinion, the defendant filed and this court overruled a motion asking the court to amend and complete its judgment by setting off the amount due on the judgment held by plaintiff against the amount due on the note held by defendant, and render a judgment for the remainder, or, in case such relief be denied, that the cause be remanded with leave to file a petition on the note and have a trial at law. The district court found generally...