Secord v. Powers
| Decision Date | 10 April 1901 |
| Citation | 85 N.W. 846,61 Neb. 615 |
| Parties | SECORD, SHERIFF, v. POWERS. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Under section 602 of the Code of Civil Procedure, a judgment clearly shown to have been obtained by fraud or false testimony, which it would be against conscience to enforce, will, on application of the unsuccessful party and a showing of due diligence, be vacated and set aside.
2. The intentional production by a litigant of false testimony to establish a cause of action or defense will, in a proper case, justify the annulment of a decree or judgment which is the product of such testimony.
3. A party should, in preparing his case for trial, proceed on the assumption that his adversary will produce evidence to make good the averments of his pleading.
4. In an action to vacate a judgment on the ground that it was obtained by fraud, the plaintiff must allege and prove that he exercised due diligence at the former trial, and that his failure to secure a just decision was not attributable to his own fault or negligence.
Error to district court, Clay county; Hastings, Judge.
Actions between M. Louisa Powers and Guy W. Secord. Judgments for plaintiff, and defendant brings error. The cases were consolidated in the supreme court and affirmed.Thomas H. Matters, for plaintiff in error.
Hurd & Spanogle, Leslie G. Hurd, and S. W. Christy, for defendant in error.
The fundamental question involved in this litigation is the ownership of certain cattle, hogs, and other chattels seized by Guy W. Secord, sheriff of Clay county, under an order of attachment issued out of the district court in an action brought by the Sutton National Bank against Thomas Powers to recover a money judgment. M. Louisa Powers, wife of Thomas Powers, asserted title to the property, and at her instance, or at least for her benefit, a motion was made to discharge the attachment. In support of this motion, which seems to have been eventually overruled, Mrs. Powers filed, not later than June 1, 1896, an affidavit containing a detailed statement of her means and the sources from which they were derived, together with a circumstantial account of the transactions through which she acquired the possession and ownership of the attached property. She afterwards instituted in the district court an action of replevin against Secord, which was tried in April, 1897, and resulted in a verdict and judgment confirming her claim to the cattle and hogs. After the adjournment of the term at which the replevin action was tried, Secord filed a petition under section 602 of the Code of Civil Procedure, alleging that the verdict against him had been obtained by perjury, and asking that the judgment in favor of Powers be set aside and a new trial awarded. Upon this petition there was a trial, which resulted in a decision denying the application to vacate the judgment. The record in each of the cases is now before us for review.
The only question discussed by counsel, and therefore the only one which we shall consider, is whether the evidence is of such a character as to justify the conclusions reached by the district court. We are fully satisfied that the evidence in the replevin action was sufficient to take the case to the jury, and that the finding in favor of the plaintiff, ratified as it is by the trial judge, should be approved and permitted to stand. And we are equally well satisfied with the decision in the equity case. Secord was not under the necessity of relying entirely, in the replevin suit, upon the candor and integrity of Mrs. Powers. Her affidavit in the attachment case advised him of all the transactions that she had with the principal witnesses produced at the second trial. It was quite as easy for him to secure the attendance or obtain the depositions of these witnesses for the first trial as for the second. It seems, however, that he did not even take the trouble to consult them. He knew that the plaintiff would undertake to establish her claim of title, and he knew of the witnesses who might perhaps refute her claim, but he did not question them either in court or out of court. Evidently he made no adequate preparation for trial. He did not become diligent until after he heard from the jury. The fourth subdivision of section 602 aforesaid creates no new right. It is merely declaratory of the equity doctrine that a judgment clearly shown to have been obtained by fraud, and which it would be against conscience to enforce, will, on the application of the...
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El Reno Mut. Fire Ins. Co. v. Sutton
...trial for fraud practiced upon him, save where the fraud was practiced in connection with the trial. While in Secord v. Powers, 61 Neb. 615, 85 N.W. 846, 87 Am. St. Rep. 474, it was held that, while the weight of authority doubtless was to the effect that a court of equity would not arrest ......
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Mahoney v. State Ins. Co.
...195. This seems to be the rule in Nebraska, although not so strictly applied as in some other jurisdictions. See Secord v. Powers, 85 N. W. 846, 61 Neb. 615, 87 Am. St. Rep. 474. But in that state the district court rendering the judgment may vacate and modify the same for fraud practiced b......
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El Reno Mut. Fire Ins. Co. v. Sutton
... ... practiced upon him, save where the fraud was practiced in ... connection with the trial ... While ... in Secord v. Powers, 61 Neb. 615, 85 N.W. 846, 87 ... Am. St. Rep. 474, it was held that, while the weight of ... authority doubtless was to the effect that ... ...
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Corbett's Estate, In re
...cases had their beginnings in Miller v. Estate of Miller, 69 Neb. 441, 95 N.W. 1010 (1903), which in turn borrowed from Secord v. Powers, 61 Neb. 615, 85 N.W. 846 (1901). The petitions to vacate filed in the latter two cases were under the provisions of section 602 of the Code of Civil Proc......