Steinberg v. Stahlnecker, 41379

• Decision Date: 29 March 1978
• Docket Number: No. 41379,41379
• Citation: 200 Neb. 466,263 N.W.2d 861
• Parties: Mason STEINBERG, Appellee, v. Jerry STAHLNECKER, Appellant.
• Court: Nebraska Supreme Court

Page 861

263 N.W.2d 861

200 Neb. 466

Mason STEINBERG, Appellee, v. Jerry STAHLNECKER, Appellant.

No. 41379.

Supreme Court of Nebraska.

March 29, 1978.

Syllabus by the Court

1. Where a judgment has been entered by default and a prompt application has been made at the same term to set it aside, with the tender of an answer or other proof disclosing a meritorious defense, the court should on reasonable terms sustain the motion and permit the cause to be heard on the merits.

2. A meritorious or substantial defense or cause means one which is worthy of judicial inquiry because it raises a question of law deserving some investigation and discussion or a real controversy as to the essential facts.

3. The matter of the vacation of a default judgment rests in the sound discretion of the trial court but this discretion is not an arbitrary one and it must be exercised reasonably.

David L. Herzog, William T. Weisbecker, Omaha, for appellant.

Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, BRODKEY, and WHITE, JJ., and KUNS, Retired District Judge.

SPENCER, Justice.

Judgment was entered against the defendant, Jerry Stahlnecker, by default in the Omaha municipal court. When his motion to set aside the default was denied, Stahlnecker appealed to the District Court, which found for the plaintiff, Mason Steinberg, and dismissed the appeal. Defendant appealed to this court. We affirm.

Plaintiff filed a claim in small claims court for $471.25, alleging that defendant on August 28, 1975, "Borrowed by 1973 T-Bird and destroyed the engine. He told me on Aug 29, 1975 that he would take care of fixing the engine, and now Mr. Stahlnecker refuses to pay for the full repair and reinstallation of the engine, including the cost of towing." Thereafter the defendant filed a request for removal of the case from the small claims court to the regular docket of the municipal court. On January 2, 1976, defendant filed an answer denying generally and demanding strict proof.

Trial was set for April 9, 1976, but was continued to June 14, 1976. Stahlnecker did not appear on June 14, and a default judgment was entered against him. On June 15, 1976, he appeared with counsel and moved to set aside the judgment entered the previous day. The presiding judge refused to vacate the default judgment unless plaintiff would agree to its vacation. Plaintiff refused and defendant appealed to the District Court which dismissed the appeal.

Our law is well settled. Where a judgment has been entered by default and a prompt application has been made at the same term to set it aside, with the tender of an answer or other proof disclosing a meritorious defense, the court should on reasonable terms sustain the motion and permit the cause to be heard on the merits. Beren Corp. v. Spader, 198 Neb. 677, 255 N.W.2d...