Meyers v. Smith

• Decision Date: 05 October 1899
• Citation: 59 Neb. 30,80 N.W. 273
• Parties: MEYERS v. SMITH.
• Court: Nebraska Supreme Court

59 Neb. 30

80 N.W. 273

MEYERS

v.SMITH.

Supreme Court of Nebraska.

Oct. 5, 1899.

Syllabus by the Court.

1. The provisions of the Code of Civil Procedure in regard to vacation of judgments and granting new trials are not exclusive. The right to an independent equitable action also exists, and such action may under certain circumstances be prosecuted after removal and review of the judgment suit in the court of last resort.

2. The petition in this case examined, and held to state a cause of action for equitable relief against a judgment at law.

3. In an equitable action to vacate a judgment on the ground of the reception of false testimony, or perjury committed during the trial of the cause in which it was rendered, the general rule is that the action must be predicated upon perjury of the successful party or his witnesses, or on matter in the evidence produced for him.

4. Alleged newly-discovered evidence, consisting of statements of the successful party and the main witness in an action of criminal conversation, averred to have been made after the trial and out of court, being cumulative or impeaching in their character, determined not sufficient to uphold a decree of vacation of the judgment and the granting of a new trial.

Error to district court, Richardson county; Stull, Judge.

Suit by John R. Smith against Haines Meyers to vacate a judgment. Decree for plaintiff, and defendant brings error. Reversed.

J. H. Broady, for plaintiff in error.

Edwin Falloon, for defendant in error.

HARRISON, C. J.

In an action of criminal conversation, Haines Meyers obtained a judgment against John R. Smith in the sum of $3,000, and in an error proceeding the judgment was affirmed both on its first submission and rehearing. The first opinion is reported in 52 Neb. 70, 71 N. W. 1006, and the one on rehearing in 54 Neb. 1, 74 N. W. 277. It was filed February 17, 1898. On February 28, 1898, a petition was filed in the district court of Richardson county for John R. Smith, the prayer of which was that a temporary injunction be granted against the enforcement by Haines Meyers of his judgment; also, that upon final hearing the judgment be vacated. The temporary injunction was granted, and issues joined, a trial of which resulted in a decree by which the judgment the subject of attack was set aside, and a new trial ordered of the action for criminal conversation. The petition in the case at bar stated as a ground for the relief sought that the judgment against which the action was directed had been obtained through the fraud and perjured testimony of the successful party and his wife. The trial court set forth in the decree in the present case that it had been made to appear that the verdict and judgment in the action at law were obtained through false and perjured testimony. In this error proceeding a reversal of the decree is asked.

It is objected that the petition does not state a cause of action, and three reasons are stated to sustain the contention: First. That the Code has provided a remedy, and this action was not commenced within the time prescribed, or had become barred. See Code Civ. Proc. §§ 318, 602, 609. To this it must be said that the petitioner disclaims any proceeding under the Code, and asserts the right to an independent equitable action, and that this suit is such a one. It is true that by our Code actions at law and in equity are blended, and there is but one form of action; but that the proceedings provided in the Code for the vacation of judgments are but cumulative and concurrent with an equitable action was recognized in Munro v. Callahan, 55 Neb. 75, 75 N. W. 151, which was a suit very similar to this at bar, and we have discovered no reason for changing the views then expressed. On this point, see, also, 11 Enc. Pl. & Prac. 1185, 1186, and note. A second reason is that it was shown in the petition that the original case had been removed to the court of last resort, there reviewed and affirmed, and that after such proceedings a bill in equity will not lie. But in this case the allegations were of matters discovered subsequent to the time at which any advantage could be taken of them in the law case, and prior to its review, and in a proper case that this was true would confer jurisdiction. The case of Munro v. Callahan, supra, although no particular mention is made of the subject, seems to uphold the doctrine we have just stated. The third reason is that the petition, in its substance or statements which set forth the matters of the merits of the suit, was insufficient. We are satisfied from an examination of the pleading that, while in some respects it is not entirely satisfactory, it states a cause of action.

It is further claimed that the evidence was insufficient to establish the allegations of the petition, and to call for relief. The averments of the petition were to the effect that in the action of criminal conversation the alleged injured husband and the wife had planned to bring about the action to extort money from the party against whom the suit was brought, and had succeeded in the trial by reason of their perjured testimony, and more particularly that of the wife. The wife gave the only testimony of the acts of criminal intercourse with her by the defendant in the action,...