Vindquist v. Perky

• Citation: 16 Neb. 284,20 N.W. 301
• Parties: VINDQUIST v. PERKY.
• Decision Date: 20 August 1884
• Court: Supreme Court of Nebraska

16 Neb. 284

20 N.W. 301

VINDQUIST

v.PERKY.

Supreme Court of Nebraska.

Filed August 20, 1884.

Error from Saunders county.

John C. Cowin and Mason & Whedon, for plaintiff.

W. H. Munger, for defendant.

COBB, C. J.

This action was brought in the court below to enforce the specific performance of a contract for the conveyance of real estate. The defendant demurred generally to the plaintiff's petition. The demurrer, it seems, was filed on the thirtieth day of May, 1882. The journal entry shows that the cause was brought to a hearing on the twenty-seventh day of October of the same year; that the demurrer was overruled, and the defendant called and defaulted for want of further answer, whereupon the court proceeded to hear proofs in said cause on the part of said plaintiff ex parte, and rendered judgment for the plaintiff. It appears, also, that afterwards, on the sixteenth day of April, 1883, the defendant filed his motion to set aside and vacate the said judgment and grant a new trial in said cause, and let the said defendant in to defend the same for irregularity and improper conduct in the plaintiff in obtaining said judgment. The said motion, after argument, was overruled, and the defendant brings the cause to this court on error.

There are attached to the record copies of affidavits in support and in resistance of said motion. But there is no bill of exceptions, hence the affldavits not having been made a part of the record cannot be considered here.

The remaining point, and that upon which plaintiff in error relies, is that the petition fails to state facts sufficient to constitute a cause of action.

Upon the first point, plaintiff in error, in the brief of counsel, takes the ground that “upon the overruling of the demurrer the defendant should have been allowed time to file an answer; and to immediately enter a default upon the overruling of the demurrer was an abuse of discretion,” etc. There is no dispute, then, as to its being a matter somewhat in the discretion of the court, whether, upon the overruling of a demurrer, time will be given in which to file an answer; and I think such to be the law; that this is a discretion which may be abused, and for which abuse, in a proper case, a judgment would be reversed, I have no doubt. But in a matter of discretion it must be presumed that it was properly exercised, until the contrary is shown. It is shown in the case at bar. The defendant having been properly brought into court by summons, and having appeared and filed a demurrer, must be presumed to have been in court when the demurrer was overruled. It must be admitted that if upon the overruling of the demurrer the defendant applied for leave to file an answer to the merits, he must have been allowed to do so; but he did not make such application until six months thereafter, and after a final judgment had been entered in the cause. In his motion filed on the sixteenth day of April, 1883, he states that he has a defense to said action on the merits, but he does not show upon what facts such defense is predicated, nor present any answer for the consideration of the court. It may be that this motion was made at the first opportunity available to the defendant, but no showing or even allegation is made to that effect. This court cannot lay it down as a rule for the government of district courts that in cases of the overruling of a demurrer they must wait six months before entering judgment by default, or that, having entered such judgment, they should set it aside and let in a defense without being informed of the character or nature of such defense, and without regard to the degree of diligence with which application therefor is made. But it may be sufficient to say that, upon the record as presented, this court cannot say that there was abuse of discretion on the part of the district court in this case.

Under the second head, plaintiff in error, in the brief of counsel, makes four points:

(1) That “the petition does not show that the court had jurisdiction of the subject-matter.” We are left to conjecture as to the application of this point to the facts set out in the petition, but suppose that reference is made to the fact that the letter of plaintiff in error, which is relied upon to take the case out of the statute of...