Seward v. Churn Ranch Co.
| Decision Date | 22 September 1939 |
| Docket Number | 30641. |
| Citation | 287 N.W. 610,136 Neb. 804 |
| Parties | SEWARD ET AL. v. CHURN RANCH CO. ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
A judgment by default against defendants may be set aside in equity after expiration of the term of court at which it was rendered, where the petition in equity and the evidence in support of it show that they had a valid defense to the original action, that the default was attributable to the negligence, fraud, deceit and betrayal of their attorney and that they themselves were not at fault.
Appeal from District Court, Cherry County; Meyer, Judge.
Suit by Elva Booth Seward and another against the Churn Ranch Company and others, a corporation, to set aside a default judgment and to permit plaintiffs to defend the action in which it was rendered. From an adverse judgment, named defendant appeals.
Affirmed.
William B. Quigley, of Valentine, and Barlow Nye, of Lincoln for appellant.
Porter, Skaggs & Porter, of Crawford, for appellees.
Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, MESSMORE, and JOHNSEN, JJ., and LANDIS, District Judge.
This action was brought in the district court for Cherry county to set aside a judgment therein after expiration of the term of court at which it was rendered.
The parties are owners of adjoining ranches in Cherry county and are rival claimants to strips of meadow lands along the boundary line between their possessions. The title of the case in which the judgment was rendered was The Churn Ranch Company, a corporation, plaintiff, against Elva Booth Seward, John T. Seward and Alva S. Saxton, defendants. Saxton had a mortgage on the lands owned by the Sewards, but disclaimed any interest in other lands or in the controversy between the other parties.
Prior to the entry of the judgment, the meadow lands in dispute were fenced with the ranch of the Sewards, were in their possession and they harvested the hay thereon. Thereafter, as directed by the judgment, the Sewards were dispossessed and the fences changed to inclose the lands in controversy with the lands of the ranch company.
On the first day of the term of court beginning December 2, 1935, the judgment by default was directed against the Sewards.
November 30, 1937, the Sewards, plaintiffs, by other counsel, brought the present suit in equity against The Churn Ranch Company, defendant, praying for a decree vacating the judgment by default and permitting them to defend the action in which it was rendered. In their petition they pleaded, in substance, facts showing that the default was the result of the negligence, deceit and fraud of Lein B. Jacobson, a licensed and practicing attorney whom they had in due time employed, paid and trusted to represent and defend them in the original action; that they promptly informed him of their title and possession; that he promised to act for them as their attorney in the litigation, but, without fault on their part, failed to perform the duties of his employment and, without their consent or knowledge, abandoned the defense and invited and permitted the default; that they had no knowledge or suspicion of any reason to mistrust him as their attorney until long after adjournment of the term of court beginning December 2, 1935. They tendered with their petition an answer in the original action, pleading title and possession prior to the judgment by default.
By answer the ranch company put in issue the facts pleaded as grounds for the relief sought by the Sewards; alleged that it procured the judgment by default in good faith without fraud or misconduct of any kind; that the relief sought by the Sewards was not grantable on any ground enumerated in section 20-2001, Compiled Statutes of 1929, authorizing a district court to set aside a judgment within two years after adjournment of the term of court at which it was rendered; that the Sewards were guilty of such negligence before and after knowledge of the default as to preclude them from obtaining relief in equity; that the action was barred by their own laches. The reply to this answer was a general denial.
Upon a trial of the case at bar, the district court found the issues in favor of the Sewards, set aside the judgment by default against them and permitted them to defend the original action. The Churn Ranch Company appealed.
On appeal the ranch company argues at length the merits of the defenses pleaded in its answer and insists that the default and resulting judgment could only have been vacated after the term of court at which it was rendered on the statutory ground of " unavoidable casualty or misfortune; " that there was no fraud on the part of the ranch company that the failure to make a defense to the original action was due solely to the negligence of the Sewards or to their attorneys,...
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