Petalka v. Fitle

• Decision Date: 12 January 1892
• Citation: 51 N.W. 131,33 Neb. 756
• Parties: FRANK PETALKA, APPELLANT, v. FRANK FITLE ET AL., APPELLEES
• Court: Nebraska Supreme Court

51 N.W. 131

33 Neb. 756

FRANK PETALKA, APPELLANT, v. FRANK FITLE ET AL., APPELLEES

Supreme Court of Nebraska

January 12, 1892

APPEAL from the district court for Douglas county. Heard below before WAKELEY, J.

AFFIRMED.

Slabaugh Lane & Rush, for appellant, cited: Blanchard v Jamison, 14 Neb. 244; Ridgeway v. Bank, 30 Tenn. 523; McNeill v. Edie, 24 Kan. 108; Mastin v. Gray, 19 Id., 458; Chambers v. Mfg. Co., 16 Ark. 270; Ryan v. Boyd, 33 Kan. 778; Owens v Ranstead, 22 Ill. 161; Gerrish v. Hunt, 66 Iowa 682; Blakeslee v. Murphy, 44 Conn. 188.

Jas. W. Carr, contra, filed no brief.

OPINION

NORVAL, J.

This action was brought in the court below by appellant for the purpose of enjoining an alleged void judgment which the appellee Fitle had obtained against him in the justice court of E. K. Wells, a justice of the peace in and for Douglas county, and an execution issued thereon, which had been placed in the hands of Martin Eddy as constable and which he was about to levy upon the property of appellant.

The plaintiff alleges in his petition: "That on the 21st day of February, 1888, the defendant herein recovered an invalid judgment against the plaintiff herein in the justice court of E. K. Wells, justice of the peace in and for Douglas county, Nebraska, for the sum of $ 60 and $ 7.90 costs of suit, in an action pending in said court wherein, the said Frank Fitle was plaintiff and the plaintiff herein, Frank Petalka, was defendant. A transcript of said invalid judgment is filed herewith, marked 'Ex. A,' and made a part hereof.

"The plaintiff alleges that there is error in said proceedings and in said record, and that said pretended judgment is invalid for the following reasons, to-wit:

"1st. That said defendant therein had not been summoned or in any way notified to appear at the hour said trial was had, but that said justice was absent from his office, the place of said trial, at the hour said Petalka was summoned to appear, and was absent from said place six or eight hours thereafter, and that the plaintiff did not appear for several hours later.

"2d. That the judgment of said suit, as appearing in the transcript filed herewith, is invalid, and that no legal judgment exists in favor of the defendant herein and against the plaintiff herein.

"3d. That said justice had no jurisdiction of the parties hereto at the time of rendering said judgment.

"That the defendant herein threatens to enforce said judgment by execution; that said justice has issued an execution out of his court on said judgment against the plaintiff herein, and delivered the same to Martin Eddy, constable, who is about to levy upon and sell under said execution the goods and chattels of the plaintiff herein.

"That the defendant herein is insolvent, and if he be allowed to enforce said judgment and collect thereon, the plaintiff herein would be irreparably injured."

No answer was filed, and the cause was submitted to the court upon the petition and evidence, on consideration thereof the court found the issues in favor of the defendants and dismissed the action for want of equity.

As the defendants failed to deny the averments of the petition, every allegation of facts contained in the petition must be taken as true. Was the petition sufficient to entitle the plaintiff to equitable relief?

The transcript of the judgment rendered by the justice of the peace, which is attached to and made a part of the petition shows that on the 14th day of February, 1888, the justice issued a summons for Frank Petalka returnable February 21, 1888, at 1 o'clock P. M., which was personally served upon Petalka on the day it was issued. The transcript also states that the defendant did not appear at the hour fixed for trial, nor for one hour thereafter, when the case was called, trial had, and judgment rendered for plaintiff for $ 60 and costs. The justice court had jurisdiction of the subject-matter of the action, and it appears from the transcript of the judgment that jurisdiction was had of the person of the defendant. So no want of jurisdiction appears upon the face of the judgment. The sole defect in the record is that it contains no...