Western Assurance Co., of Toronto v. Klein

• Citation: 67 N.W. 873,48 Neb. 904
• Decision Date: 16 June 1896
• Docket Number: 6724
• Parties: WESTERN ASSURANCE COMPANY OF TORONTO v. JOSEPH KLEIN
• Court: Supreme Court of Nebraska

67 N.W. 873

48 Neb. 904

WESTERN ASSURANCE COMPANY OF TORONTO v. JOSEPH KLEIN

No. 6724

Supreme Court of Nebraska

June 16, 1896

ERROR from the district court of Cass county. Tried below before CHAPMAN, J.

AFFIRMED.

C. S Polk and Fyke, Yates & Fyke, for plaintiff in error.

Byron Clark, contra.

OPINION

RAGAN, C. J.

The Western Assurance Company of Toronto, Canada, brought this action to the district court of Cass county against Joseph Klein to set aside a judgment rendered by default in said court in favor of Klein and against the assurance company on the 8th day of November, 1893. The district court, after hearing the evidence, entered a decree dismissing the action of the assurance company and it prosecutes to this court a petition in error.

1. The fourth subdivision of section 602 of the Code of Civil Procedure provides that a district court shall have power to vacate or modify its own judgment or orders after the term at which they were rendered "for fraud practiced by the successful party in obtaining the judgment," and it is upon this subdivision of said section that the action of the assurance company is based. The assurance company alleged in its petition, in substance, that before the answer day in the case of Klein v. The Assurance Company it filed a motion to quash the service in that action; that sometime after that its attorney notified the attorney of Klein of the filing of said motion and inquired of him when it could be taken up and that Klein's attorney answered that he thought he might submit to the motion and asked leave to have the sheriff's return amended; that its attorney then said to Klein's attorney that this would be all right, but that when the motion to quash was disposed of he desired to file an answer for the assurance company, as he had one prepared that there was no hurry about disposing of the motion as the case could not be tried at that--the September--term, and Klein's attorney responded that the case could not be tried at that term; that he was in no hurry to try it; that he did not wish to try it at that term, as he would like to see the case settled; that a proposition made by Klein's counsel to settle the case was at that time under consideration by the assurance company; that subsequent to this conversation the attorneys for the respective parties had a consultation in regard to the settlement of the case and at that time no reference was made to the motion pending to quash the service; that on the 20th of October, 1893, the jury for the September term was discharged for that term and the court adjourned to October 30; on this date court again convened and adjourned to the 31st of October; that on said last date court again convened and adjourned to meet on the 4th of November; that on the 31st of October the judge stated that the court would be adjourned to the 4th of November to dispose of some matters he then had under advisement and that he would then adjourn the court until sometime in December when he would hold an equity term; that on the 4th of November, the judge being absent, the clerk of the court adjourned it from day to day to the 8th of November; that on the 7th of November the attorney for the assurance company in a conversation with the judge of the court asked him if it would be in session on the following day, and was informed by the judge that it would for a short time to dispose of matters under advisement; that on the 8th of November, 1893, the court convened at 10 o'clock in the forenoon and after disposing of matters under advisement the case of Klein v. The Assurance Company was called, default taken, and judgment entered in the absence of the counsel for the assurance company; that the motion to quash the service of summons had been on the 20th of October, 1893, without notice to the attorney of the assurance company, called up and disposed of by Klein's attorney confessing the motion and the sheriff amending his return; that the court adjourned without day on the 8th of November, 1893, and before counsel for the assurance company learned that judgment had been rendered by default against his client. The petition further alleged that the counsel for the assurance company relied on the statements made to him by the attorney for Klein and was thereby prevented from making a defense to the action, though the assurance company had a meritorious defense to...