Lyman v. Dunn

• Decision Date: 04 January 1934
• Docket Number: 28717
• Citation: 252 N.W. 197,125 Neb. 770
• Parties: CHARLES F. LYMAN ET AL., APPELLANTS, v. NEIL H. DUNN, APPELLEE
• Court: Nebraska Supreme Court

252 N.W. 197

125 Neb. 770

CHARLES F. LYMAN ET AL., APPELLANTS, v. NEIL H. DUNN, APPELLEE

No. 28717

Supreme Court of Nebraska

January 4, 1934

APPEAL from the district court for Adams county: LOUIS H BLACKLEDGE, JUDGE.Reversed, with directions.

REVERSED.

Syllabus by the Court.

1.In civil casesa court of general jurisdiction has inherent power to vacate or modify its own judgments at any time during the term at which they are rendered.

2.After the final adjournment of the term of court at which a judgment has been rendered, the court has no authority or power to vacate the judgment except for the reasons stated and within the time limited in chapter 20, art. 20, Comp. St 1929.

3.The lack of diligence of a party or his attorney is not an " unavoidable casualty or misfortune," under the seventh subdivision of section 20-2001, Comp. St. 1929, preventing the party from defending an action at a former term of court.

Appeal from District Court, Adams County; Blackledge, Judge.

Action by Charles F. Lyman and another against Neil H. Dunn.From an order setting aside a default judgment against defendant, plaintiffs appeal.

Reversed, with directions.

J. M. Fitzgerald, R. O. Canaday and James E. Addie, for appellants.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ., and CLEMENTS, District Judge.

OPINION

GOSS, C. J.

This is a review of the order of the district judge, setting aside a judgment against defendant.

April 6, 1931, plaintiff Lyman sued defendant in equity for an accounting as to certain real and personal property owned by the three present parties but held by defendant, alleged to have been improperly and fraudulently handled and in part converted to defendant's own use.

June 6, 1931, defendant being in default, judgment in favor of plaintiff was duly entered against him.June 9, 1931, a stipulation on behalf of the parties was filed to the effect that the judgment might be set aside and plaintiff given 15 days to file an amended and supplemental petition.Later Higinbotham was allowed to become a partyplaintiff and a petition was filed by plaintiffs Lyman and Higinbotham, alleging an oral partnership agreement of the three parties for the purpose of purchasing, handling and selling real and personal property, each to share equally in the ownership and profits.It alleged improper handling of the partnership property and failure to account therefor; and prayed for a dissolution of the partnership, for an accounting and for a judgment against defendant.

April 6, 1932, defendant applied for 20 days additional time to answer, but failed to answer.On May 10, 1932, default was entered against defendant and, upon a hearing, the court found against defendant and entered judgment against him in favor of each plaintiff severally.No motion for new trial was filed.The record shows that this judgment was rendered at the January, 1932, term, which adjourned August 13, 1932.

August 11, 1932, defendant filed an application, in form of a verified petition, to vacate the judgment, the obtaining of which he charged to the negligence of his then counsel.He alleged in the petition that he had advanced out of his own funds for the protection of said partnership properties approximately $ 17,000 and received from the sale of two properties $ 8,000, leaving about $ 9,000 due from both plaintiffs; that he advanced Lyman $ 6,500 on a note involved in the enterprise and is entitled to recover said sum from Lyman; that he can and will account for all moneys which came into his hands and that the accounting will show the plaintiffs indebted to him approximately as above stated; and that, if the judgment is vacated, he will file an answer and cross-petition, setting forth the facts entitling him to relief, and will not delay the case for hearing.This petition was entitled "Showing and application for vacation of judgment."It was verified by affidavit of defendant.Service of notice that it would be called up for hearing forthwith, accompanied by a copy of the petition, was accepted in writing by attorneys for Lyman and Higinbotham on August 11, 1932.But it was not then called up or heard.

On October 11, 1932, being in the September, 1932, term of court, the court heard the application, upon testimony set aside the default and judgment entered May 10, 1932, and authorized defendant to answer by October 15, 1932, upon paying all costs to that date.Plaintiffs appealed from this order and from an order overruling their motion for a new trial on the issue.Defendant-appellee filed no brief and made no argument in this court.The bill of exceptions was filed on March 25, 1933.On March 28, 1933, defendant's attorney, who represented him only on the application and hearing in the district court, withdrew here and a certified copy of his withdrawal was, at his request, sent to appellee.

The assignments of error deny the jurisdiction and power of the district court to hear and determine the application and to vacate the judgment, and allege that the facts pleaded and proved are insufficient to authorize the vacation of the judgment and that it is contrary to the law and the evidence.

If the application to vacate the judgment had been heard by the court at the term at which it was filed, appellants concede that the court would have had the power to vacate the judgment.That has been the settled law in this jurisdiction many years, if there has been no abuse of judicial discretion in exercising the power within the same term.Smith v Pinney, 2 Neb. 139;Volland v. Wilcox, 17 Neb. 46, 22 N.W. 71;Harris v. State, 24 Neb. 803, 40 N.W. 317;Bigler v. Baker, 40 Neb. 325, 58 N.W. 1026;Bradley v. Slater, 55 Neb. 334, 75 N.W. 826.There was a rehearing in the last named case and it was again affirmed in Bradley v. Slater, 58 Neb. 554, 78 N.W. 1069, the opinions being by Judge Sullivan.In the latter opinion and syllabi it was said: "Courts of general jurisdiction possess inherent power to vacate or modify their own judgments at any time during the term at which they were pronounced.This power exists entirely independent of any statute.It is derived from the common law, and the provisions of the Code of Civil Procedure relating to new trials do not assume to abolish or abridge it.Section 314(now Comp. St. 1929, sec. 20-1142) of the Code does not deal with the power of the court, but with the rights of the litigant.""A defendant against whom judgment has been rendered by default may during the term, and after the expiration of three days from the date of the judgment, ask the court, as a matter of judicial grace and in furtherance of...