Weber v. Allen

• Decision Date: 30 October 1931
• Docket Number: 27849
• Citation: 238 N.W. 740,121 Neb. 833
• Parties: ANNA WEBER, APPELLANT, v. JAMES F. ALLEN ET AL., APPELLEES
• Court: Nebraska Supreme Court

238 N.W. 740

121 Neb. 833

ANNA WEBER, APPELLANT, v. JAMES F. ALLEN ET AL., APPELLEES

No. 27849

Supreme Court of Nebraska

October 30, 1931

APPEAL from the district court for Dawes county: EARL L. MEYER JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

A suit in equity to vacate a judgment procured by fraud cannot be maintained where the plaintiff has an adequate statutory remedy at law by petition or proceeding in the original action.

Where a new trial is sought by a petition filed after term, alleging fraud and perjury in procurement of the judgment, the party seeking the new trial must introduce the evidence adduced at the former trial, which constitutes the basis of the complaint.

Appeal from District Court, Dawes County; Meyer Judge.

Suit by Anna Weber against James F. Allen and another to vacate a judgment. Judgment for the defendants, and the plaintiff appeals.

Affirmed.

Allen G. Fisher, Samuel L. O'Brien and Charles A. Fisher, for appellant.

E. H. Boyd and W. R. Metz, contra.

Heard before Rose, GOOD and DAY, JJ., and MESSMORE and NISLEY, District Judges.

OPINION

DAY, J.

This is an unusual appeal. It's object is to avoid a judgment rendered November 23, 1927, in favor of the defendant against the plaintiff, which was heretofore affirmed by this court in June, 1929. A petition for equitable relief was filed November 8, 1929. A supplemental petition was filed in the original case November 4, 1929, under section 20-2001, Comp. St. 1929. The prayer of each petition was that the judgment be vacated for that it had been procured by fraud and perjury.

At the outset it is apparent that the suit in equity was not proper. The petition alleges that the plaintiff has no adequate remedy at law, but said allegation was not true, since she not only had a remedy at law but was at the time actually pursuing such remedy. A suit in equity will not lie where an adequate remedy at law exists. In Krause v. Long, 109 Neb. 846, 192 N.W. 729, it was said: "The rule obtains in this and some other jurisdictions that equity will not afford relief if the complainant has a remedy by statutory proceeding in the original action, and that to be entitled to equitable relief against the enforcement of a judgment procured by fraud the party must not have neglected to avail himself of a statutory remedy. Van Antwerp v. Lathrop, 70 Neb. 747, 98 N.W. 35; State v. Lincoln Medical College, 86 Neb. 269, 125 N.W. 517; Bankers Life Ins. Co. v. Robbins, 53 Neb. 44, 73 N.W. 269; Proctor v. Pettitt, 25 Neb. 96, 41 N.W. 131; 23 Cyc. 981; Wirth v. Weigand, 85 Neb. 115, 122 N.W. 714; National Surety Co. v. State Bank, 56 C.C.A. 657; Thompson v. Laughlin, 91 Cal. 313, 27 P. 752." This was quoted with approval in Brandeed v. Beale, 117 Neb. 291, 220 N.W. 298. In passing, we note that some states have adopted a contrary rule.

We are next confronted with the disclosure in the record that the only motions for new trial filed in the cases were oral. Section 20-1144, Comp. St. 1929, requires that an application for new trial must be by motion upon written grounds filed at the time of the making of the motion. The provisions of this statute are mandatory. Carmack v. Erdenberger, 77 Neb. 592, 110 N.W. 315. Under the circumstances, there is no motion for new trial in either of the cases. The inquiry of this court in the action at law is limited to the sufficiency of the pleadings to support the judgment. O'Donohue v. Hendrix, 13 Neb. 255; Farris v. State, 46 Neb. 857, 65 N.W. 890; Slobodisky v. Curtis, 58 Neb. 211, 78 N.W. 522; Walker v. Burtless, 82 Neb. 214, 118 N.W. 113; Anderson v. Union Stock Yards Co., 84 Neb. 305, 120 N.W. 1124. The pleadings, upon examination, disclose that they are sufficient to support the judgment of the court. Upon consideration of the equity case, this court, in the absence of a motion for new trial, cannot consider alleged errors in the admission of testimony. State v. Citizens' State Bank, 115 Neb. 271, 212 N.W. 616.

This might be of controlling force, in connection with the motion of the appellant filed in this court to make the bill of exceptions in the original case a part of the bill of exceptions in this case. The alleged false evidence upon which the judgment was rendered is no part of the record in this case. Where a new trial is sought by means of a petition filed after term, alleging fraud and perjury in procurement of judgment, the litigant moving for a new trial must introduce the evidence adduced at the former trial. Clemont v. Cudahy Packing Co., 90 Neb. 449, 133 N.W 842; Omaha, N. & B. H. R. Co. v. O'Donnell, 24 Neb. 753, 40 N.W. 298; Barr v. Post, 59 Neb. 361, 80 N.W. 1041. The testimony...