Woodward v. Pike

• Decision Date: 06 February 1895
• Citation: 43 Neb. 777,62 N.W. 230
• Parties: WOODWARD v. PIKE ET AL.
• Court: Nebraska Supreme Court

43 Neb. 777

62 N.W. 230

WOODWARD

v.PIKE ET AL.

Supreme Court of Nebraska.

Feb. 6, 1895.

Syllabus by the Court.

A court of equity will not enjoin the enforcement of a judgment at law unless it appears that plaintiff had at the time of the rendition of such judgment a valid defense; and if the relief prayed could have been afforded upon due application, under section 602, Code Civ. Proc., relating to new trials, it must, in addition, be satisfactorily shown that by reason of fraud, or circumstances beyond the control of plaintiff, he has been prevented from availing himself of the provisions of the aforesaid section.

Appeal from district court, Lancaster county; Hall, Judge.

Action by William A. Woodward against William A. Pike and H. J. Whitmore to enjoin the collection of a judgment by default. Judgment for defendants, and plaintiff appeals. Affirmed.Ricketts & Wilson, for appellant.

H. J. Whitmore, for appellees.

RYAN, C.

This action was brought by the appellant, in the district court of Lancaster county, for the purpose of enjoining the collection of a judgment previously rendered in said court in another cause, wherein appellee Pike had been plaintiff and appellant, and Woodward had been defendant. The suit wherein the judgment complained of was rendered was commenced before a justice of the peace of Lancaster county. From a judgment of date July 6, 1892, in favor of Woodward, Pike appealed to the district court aforesaid, and on August 4th, immediately following, filed his transcript therein. As this was within 30 days from the rendition of judgment, the jurisdiction of the court last named duly attached. The appellant, Pike, did not within 20 days thereafter, as required by statute, file a petition. Indeed, his petition was not filed until September 22, 1892. After having filed his petition by leave of court, plaintiff gave no notice thereof to defendant, but on December 23, 1892, took judgment against him by default. On January 26th, thereafter, the defendant learned of the existence of said judgment, and began this action to enjoin its collection.

The practice sanctioned by this court probably required that, upon the filing of this petition out of time, the defendant should have had some sort of notice thereof before judgment was entered against him. Manufacturing Co. v. Clark, 23 Neb. 672, 37 N. W. 638; Arnold v. Lumber Co., 36 Neb. 841, 55 N. W. 269;Schultz v. Loomis, 40 Neb. 152, 58 N. W. 693. While the practice pursued was...