Munro v. Callahan

• Citation: 75 N.W. 151,55 Neb. 75
• Decision Date: 04 May 1898
• Docket Number: 8038
• Parties: GEORGE F. MUNRO, APPELLEE, v. DELIA A. CALLAHAN, APPELLANT
• Court: Nebraska Supreme Court

75 N.W. 151

55 Neb. 75

GEORGE F. MUNRO, APPELLEE, v. DELIA A. CALLAHAN, APPELLANT

No. 8038

Supreme Court of Nebraska

May 4, 1898

APPEAL from the district court of Douglas county. Heard below before DUFFIE, J. Affirmed.

AFFIRMED.

John F Cromelien and William F. Gurley, for appellants:

The petition is demurrable, because (1) a court of equity is without jurisdiction, there being an adequate remedy at law (2) because it does not state facts sufficient to constitute a cause of action; (3) and because it shows that plaintiff has been guilty of gross negligence, which would deprive him of equitable relief. (McClure v. Warner, 16 Neb 447; Gibson v. Parlin, 13 Neb. 292; Burlington & M. R. R. Co. v. Kearney County, 17 Neb. 511; Cheney v. Dunlap, 27 Neb. 401; Chicago, R. I. & P. R. Co. v. Shepard, 39 Neb. 526; Renfrew v. Willis, 33 Neb. 98; Scofield v. State Nat. Bank, 9 Neb. 316; Young v. Morgan, 9 Neb. 169; Gould v. Loughran, 19 Neb. 392; Buchanan v. Griggs, 18 Neb. 121; Hartford Fire Ins. Co. v. Meyer, 30 Neb. 135; Shane v. Clarke, 3 Har. & M. [Md.] 101; Clough v. State, 7 Neb. 324; Lamb v. State, 41 Neb. 356; Hill v. State, 42 Neb. 503; Cohn v. Goldman; 76 N.Y. 284; Wright v. Bourdon, 50 Vt. 494; McHenry v. Sneer, 56 Ia. 649; Thomas v. Markmann, 43 Neb. 828; Woodward v. Pike, 43 Neb. 777; Nicholson v. Patterson, 6 Humph. [Tenn.] 394; Harrison v. Harrison, 1 Litt. [Ky.] 137; Veech v. Pennebaker, 2 Bibb [Ky.] 326; Codde v. Mohiat, 66 N.W. 1093 [Mich.]; Gray v. Barton, 28 N.W. 813 [Mich.].)

J. H. Van Dusen and W. S. Summers, contra.

RAGAN, C. IRVINE, C., expresses no opinion.

OPINION

The opinion contains a statement of the case.

RAGAN, C.

June 25, 1892, on the complaint of Delia A. Callahan, George F Munro was by the district court of Douglas county adjudged to be the father of the former's illegitimate child. From this judgment Munro prosecuted a proceeding in error to this court, which affirmed the judgment of the district court. (Munro v. Callahan, 41 Neb. 849, 60 N.W. 97.) Subsequently, on December 6, 1894. Munro filed a petition in the district court of Douglas county against Callahan reciting the record and proceedings of the former suit and alleging, among other things, that Callahan had procured said judgment by committing willful and corrupt perjury on the trial of that case, and prayed the court to set such judgment aside, and to grant him, Munro, a new trial. The district court, on hearing the action, set aside the former judgment and granted Munro a new trial, from which order Callahan has appealed. The bill of exceptions containing the evidence offered on the trial of this case in the district court has been quashed, and the sole question for our determination is whether the pleadings in this case will support the decree rendered therein.

1. To the petition filed by Munro on December 6, 1894, an answer was filed on the 15th of said month, and subsequently, on the 17th, an amended petition was filed. The record does not disclose that an answer was filed to this amended petition, but the case seems to have been tried on the amended petition. The decree recites that the case was heard upon the pleadings filed by the parties and upon the evidence, and counsel for the appellant have addressed their arguments to the sufficiency of the allegations of the amended petition. We shall, therefore, only inquire whether the allegations of the amended petition will support the decree under review. This amended petition, among other things, alleged: "Plaintiff further charges that said verdict so rendered in said action was obtained on the false, fraudulent, and perjured testimony of the said Delia A. Callahan; that said Delia A. Callahan on the said trial testified that the bastard child, of which she charged this plaintiff as being the father, was conceived on Easter Sunday, March 29, 1891, between the hours of 2 and 5 o'clock of the afternoon of said day; that said testimony was false and fraudulent; and said Delia A. Callahan, at the time of giving the same, well knew it so to be. Plaintiff alleges the fact to be that on the said Easter Sunday he did not see the said Delia A. Callahan. * * * Plaintiff further charges the fact to be that while he well knew that the said Delia A. Callahan had testified falsely on said trial, yet he did not, at the time, know where he could obtain the testimony to show that the said Delia A. Callahan had sworn falsely for the purpose of obtaining an unjust verdict against him; that he had no knowledge of where he could obtain the witnesses who knew and would testify that said Delia A. Callahan had sworn falsely in said action at law until long after the time had expired for filing a motion for a new trial in said cause; that this plaintiff now has such testimony and will produce the same in court." Since the bill of exceptions has been quashed the judgment is to be considered as if it had been rendered by default, or on the district court's overruling a demurrer interposed to the amended petition by Callahan. In addition to certain special findings the tenth finding of the district court is as follows: "The court further finds that the general equities are with the plaintiff." We take it that within this general finding are included findings that Munro had a prima facie defense to the action brought against him by Callahan; that the defeat suffered by him in that action was not the result of any negligence or laches on his part; and that he had diligently pursued and exhausted all ordinary legal remedies provided by statute for obtaining a new trial of said action and for the vacation of said judgment. We think the petition sufficient to support these findings, as it sets out, in addition to what we have quoted, the filing by Miss Callahan in the district court of the complaint against Munro charging him with being the father of her illegitimate child; that he pleaded not guilty to such charge; was tried to a jury and found guilty; his filing of a motion for a new trial; the overruling of such motion; the judgment upon the verdict of the jury; the error proceeding to this court and the affirmance of the judgment of the district court.

2. Assuming that the general finding of the district court includes the finding that the judgment obtained by Miss Callahan against Munro was procured by her willful perjury is the petition in that respect sufficient to support the finding? Is it good against a demurrer? When the nature of the case in which that judgment is rendered is considered, when it is remembered that the only issue in that case was whether Munro was guilty of being the father of Callahan's illegitimate child, that without her positive and unequivocal testimony that he was her child's father, she could not have procured the judgment she did, and that she, and she alone, could positively and certainly know who was the father of her child, we think the petition sufficient. In other words, from the very nature of the case, a finding that one is the father of a bastard child rests, and must rest, where the issue is litigated, upon the testimony of the mother; and if this testimony is false and perjured, then a judgment based on such a...