Merriam v. Calhoun

• Decision Date: 27 May 1884
• Citation: 19 N.W. 708,15 Neb. 569
• Parties: SELDEN N. MERRIAM, PLAINTIFF IN ERROR, v. S. H. CALHOUN AND J. H. CROXTON, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

19 N.W. 708

15 Neb. 569

SELDEN N. MERRIAM, PLAINTIFF IN ERROR, v. S. H. CALHOUN AND J. H. CROXTON, DEFENDANTS IN ERROR

Supreme Court of Nebraska

May 27, 1884

ERROR to the district court for Otoe county. Tried below before POUND, J.

AFFIRMED.

Watson & Wodehouse, for plaintiff in error, cited: Kepley v Irwin, 14 Neb. 300.

S. H Calhoun, for defendants in error, cited: Newlove v Woodward, 9 Neb. 504.

OPINION

MAXWELL, J.

In January, 1882, the defendants in error commenced an action against the plaintiff in error in the district court of Otoe county to redeem certain lands claimed by them, which had been sold to the plaintiff in error for taxes and a tax deed obtained. The plaintiff in error being a non-resident of the state service was had upon him by publication. At the April term, 1883, of the district court of that county, a decree was rendered by default, in which the court finds that the tax deed is invalid and that the amount of taxes due, with interest at twelve per cent, was the sum of $ 552.40, which the defendants in error were required to pay to the clerk of the court, and thereupon the tax deed was set aside. In July, 1883, the plaintiff in error filed an answer to the petition and filed a motion upon proper notice to set aside the default and be let in to defend. The motion was overruled by the court, and the cause is brought to this court by petition in error.

Sec. 82 of the code 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 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. * * * The adverse party, on the hearing of an application to open a judgment or order as provided by 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."

The record contains an affidavit of the defendant, wherein he states that he had no actual notice of the pendency of the action. To show that the defendant had actual notice of the pendency of the action, the plaintiffs introduced in evidence a power of attorney from Selden N. Merriam and wife to W. D Merriam, by which he is constituted their "true and lawful...