Osborne v. Gehr

• Decision Date: 20 May 1890
• Citation: 29 Neb. 661,46 N.W. 84
• Parties: OSBORNE ET AL. v. GEHR ET AL.
• Court: Nebraska Supreme Court

29 Neb. 661

46 N.W. 84

OSBORNE ET AL.

v.GEHR ET AL.

Supreme Court of Nebraska.

May 20, 1890.

Syllabus by the Court.

1. A court of equity will not set aside a judgment at law, regular on its face, when it is not shown that the judgment was rendered where no cause of action existed.

2. On the 6th day of September, 1875, D. M. O. & Co. recovered a judgment against G. & B. in the county court of Stanton county. On July 7, 1886, G. & B. commenced this action to cancel the judgment on the ground that it was obtained through fraud. Held, that G. & B., by laches, had lost their right to equitable relief.

Error to district court, Stanton county; POWERS, Judge.C. C. McNish and H. C. Brome, for plaintiffs in error.

John A. Ehrhardt, for defendants in error.

NORVAL, J.

On the 6th day of September, 1875, the county judge of Stanton county rendered a judgment in favor of the plaintiff in error, and against the defendants in error, for the sum of $120.60 debt and $6.70 costs; the record showing that the defendants had appeared, and confessed judgment for the amount. A transcript of the judgment was filed in the office of the clerk of the district court of Stanton county, August 30, 1878. This judgment having become dormant, D. M. Osborne & Co., on the 15th day of June, 1882, filed a motion, supported by affidavit, for a revivor. The defendants in error, Gehr & Bowman, appeared and filed an answer in the proceedings to revive, alleging therein the same facts stated in the petition in this case. To this answer to the motion to revive, D. M. Osborne & Co. interposed a general demurrer, which on the 26th day of September, 1882, was sustained by the district court, and said judgment of the county court transcripted to the district court was revived. No proceedings were taken to reverse the order of revivor. On the 7th day of July, 1886, the defendants in error commenced this suit to cancel the judgment rendered by the county court, alleging in the petition that they never appeared before said county court at any time and waived the issuing of summons, and entered their appearance in, or confessed judgment in, said cause of D. M. Osborne & Co. against Samuel Gehr and William L. Bowman. The petition further alleges: “That they never knew that said judgment had been rendered in favor of D. M. Osborne & Co. against your plaintiffs until more than a year had elapsed from the date said judgment purports to have been rendered. Plaintiffs further aver that they had on said 6th day of September, 1875, and still have, a good defense to any cause or action said D. M. Osborne & Co. may claim to have against these plaintiffs, and that, by reason of there having been no summons issued in said cause, and these plaintiffs being entirely ignorant of the time set for said hearing, they were debarred from making any defense to said cause of action.” There are other allegations of the petition, to which it is unnecessary to refer. D. M. Osborne & Co. answered, admitting the judgment, and denying all other averments of the petition. The answer also sets up as a bar to the action the revivor proceedings. The reply admits the...