Sang v. Lee
| Decision Date | 06 January 1887 |
| Parties | SANG v. LEE. |
| Court | Nebraska Supreme Court |
In an action by L. against S., on a money demand, S. failed to appear or answer. His default was entered, L. proved up, and judgment was entered in his favor. Two days thereafter, and before the final adjournment of the term, the defendant appeared, and filed a motion to set aside the default and judgment, accompanied by his affidavit and an answer to the merits. Plaintiff also filed an affidavit in resistance. Considering the two affidavits together, it appeared that there had been an attempt at negotiating a settlement, defendant claiming that negotiation was had after suit began, while plaintiff's counsel claimed that such negotiation was had, and failed, before summons issued. The judgment of the district court refusing to set aside the judgment and default upheld.
Error to district court, Dodge county.
Action to recover $752.58 for goods sold and delivered.William Marshall, for plaintiff in error.
W. H. Munger, for defendant in error.
It appears from the abstract that on the twenty-eighth day of March, 1885, the plaintiff, defendant in error, commenced this action in the district court of Dodge county, and filed his petition in said court, praying judgment against the defendant, plaintiff in error, for a certain sum, the amount of which, or the particulars of his cause of action, it is not deemed necessary to state here. The said defendant having failed to appear or answer, the plaintiff, by his attorney, on the fifteenth day of June next ensuing, the said court being then in regular session, called up the said action; and, the said court having found that the said defendant had had due and legal service of the summons in the said action, his default was regularly entered. Whereupon the said cause came on for trial, and, the plaintiff having waived a jury, the said cause was tried to the court, which, after hearing the evidence offered by the plaintiff, made a finding, and rendered a final judgment, for him.
On the seventeenth day of said month of June, the said court being still in session, the said defendant filed an answer therein in said cause, setting out his defense to the said petition and action of the plaintiff, and tendering an issue therein; and thereupon made and filed a motion to set aside the said default, as follows:
“MOTION.
And now comes the defendant, and moves the court here to set aside the default herein for the reasons following: (1) Because the said default has not yet been entered upon the journal and records of this court; (2) because said defendant and the attorney for the plaintiff were in good faith making every effort to settle the matters in controversy in this cause without further litigation or costs, and that the defendant believed, and thought he had good reason to believe, that no default would be by the plaintiff taken against this defendant pending negotiations for said settlement, and said negotiations are still pending, as will more fully and at large appear from the affidavit of the defendant herewith filed, and made part of this motion; (3) that this defendant, believing that no default would be taken against this defendant, and that the said matter in dispute would and could be settled without further suit, he delayed filing his answer; (4) that this defendant has a good and meritorious defense as to $506.73 of the amount claimed by the plaintiff; (5) the defendant prays that the said default may be set aside, and that the defendant be allowed to file his answer herein.”
--And filed and presented the following affidavit in support of his said motion:
“AFFIDAVIT OF CHARLES SANG, DEFENDANT.
Charles Sang, being first duly sworn, on his oath deposes and says:
That he is the defendant in the above-entitled action; that the account attached to the petition of the plaintiff is an account in part between the firm of Henry J. Lee and Co., said firm being composed of the plaintiff, Henry J. Lee, and Charles A Fried, and includes so much of said account as covers the time up to the spring of 1880; that the firm of E. M. Maxwell & Co. were doing business in the city of Fremont, Nebraska, from about the twenty-third day of January, A. D. 1878, up to about the first of May, 1881; that the Union Barbed-wire Company were desirous of obtaining from the said E. M. Maxwell & Co. a place in the building of said E. M. Maxwell & Co. wherein to manufacture barbed wire, and to obtain work and machinery from the said E. M. Maxwell & Co.; that E. M. Maxwell & Co. were not willing to let the said Union Barbed-wire Company have any power, machinery, or the repair thereof, or to rent any part of the building occupied by the said E. M. Maxwell & Co., to said Union Barbed-wire Co., and that the said Charles A. Fried, who was then the manager of the business of the said Union Barbed-wire Co., promised to and agreed with the said E. M. Maxwell & Co. that the firm of H. J. Lee & Co. would give to the firm of E. M. Maxwell & Co. credit for the rent of the building occupied and rented by the said Union Barbed-wire Co. for anything that the said Union Barbed-wire Co. might get of said E. M. Maxwell & Co., and the said E. M. Maxwell & Co., relying upon the promise of the said H. J. Lee & Co. to become responsible to the firm of E. M. Maxwell & Co. for the rent to become due from the said Union Barbed-wire Co. to the said E. M. Maxwell & Co., did rent a part of their building to the said E. M. Maxwell & Co., for the said Union Barbed-wire Co., and did let the said Union Barbed-wire Co. have the use of their power, and did repair and make machinery for said Union Barbed-wire Co., in all amounting to the sum of $506.73.
That the said E. M. Maxwell & Co. during the time that said Union Barbed-wire Co. were so occupying the portion of the building of said E. M. Maxwell & Co., the said E. M. Maxwell & Co. were making a large purchase of hardware and iron from the said H. J. Lee & Co., and upon this account the said credit was to be given by the said H. J. Lee & Co.; that being on friendly terms with the said H. J. Lee, and being anxious of settling the matterof said credit due from the said H. J. Lee & Co., this affiant called upon Wm. H. Munger, the attorney of the said H. J. Lee, a short time after the service of the summons in this case upon him, and at the time of said call explained to the said Wm. H. Munger the manner in which he was entitled to the said credit, and informed the said W. H. Munger that one George Maxwell knew the above-stated facts, and also informed the said Munger, either in that call or in a subsequent conversation, that one Minor H. Hinman knew the above facts, or something of the above facts; that the said Munger agreed to ascertain from the said George Maxwell and the said Hinman all he could about the facts in this case, and, if the facts turned out to be as this affiant represented, the said Munger said he thought there would be no trouble in having the matter settled without the expense of further litigation; that this affiant had several conversations with the said W. H. Munger in regard to said matter, in the effort to settle the same without further costs; and that, from these conversations touching the settlement of the matters in dispute between this affiant and the said H. J. Lee, this affiant was led to believe, and did believe, that no default would be taken against him in this action, and that he would be called only to answer in case these efforts at settlement failed, and was very much surprised to find that a...
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