Wunrath v. People's Furniture & Carpet Co.
| Decision Date | 01 May 1915 |
| Docket Number | 18962 |
| Parties | WILLIAM WUNRATH, APPELLANT, v. PEOPLES FURNITURE & CARPET COMPANY, APELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Affirmed.
AFFIRMED.
A. H Burnett, Brome & Brome and William G. Stewart, for appellant.
Mahoney & Kennedy and Nolan & Woodland, contra.
This plaintiff obtained a judgment against this defendant in the district court for Douglas county for damages which he alleged he had suffered by reason of the negligence of the defendant. Afterwards the defendant filed a petition in the cause asking to vacate the judgment because of fraud and perjury on the part of the plaintiff in obtaining the same. The plaintiff filed an answer to this petition, to which the defendant, with leave of court, replied, and upon trial the district court granted the relief asked for and vacated the former judgment. From this decision vacating the former judgment the plaintiff has appealed to this court.
The first question presented is as to the right of the plaintiff to appeal in a proceeding of this kind. It is contended that this is not a judgment or final order and is not appealable. There have been in this court very many decisions of this kind passing upon, or directly or indirectly connected with, this question or questions of this nature. Some of these decisions, it must be considered, are indefinite, and others will appear, possibly, if not carefully considered, to be inconsistent. It seems to be important that the question should be carefully examined and the true rule determined and stated.
Section 314 et seq. of the Code (Rev. St. 1913, sec. 7883 et seq.) relates to the subject of new trials and defines the terms and provides when a new trial may be granted. It defines a new trial as Section 602 et seq. of the Code (Rev. St. 1913, sec. 8207 et seq.) relates to the vacation or modification by the district courts of judgments and orders after the term at which they were rendered. Section 582 of the Code (Rev. St. 1913, sec. 8185) provides: "A judgment rendered or final order made by the district court may be reversed, vacated, or modified by the supreme court, for errors appearing on the record." Section 581 of the Code (Rev. St. 1913, sec. 8176) defines what is meant by a final order as distinguished from a judgment.
The trial court has a large discretion to grant a new trial of a case upon application made at the same term, if satisfied that an error has been committed prejudicial to a party, or that a manifest injustice has been the result of the first trial. The hearing upon the application is summary, and involves a re-examination of the facts upon which the rights of the parties ultimately depend. It may in some sense be regarded as a continuation of the hearing, and is in no sense a new action. In some states the order made upon such a motion is regarded as a final order, on the ground that it affects a substantial right of the parties. But in this state an order granting a new trial upon motion made at the term at which the judgment was rendered is not appealable. It may be reviewed upon appeal after judgment therein. The proceeding to vacate a judgment at a subsequent term is entirely different from an application for new trial by motion at the term at which the judgment or order is rendered. This distinction is plainly indicated by this court in the earlier decisions.
In Iler v. Darnell, 5 Neb. 192, it is expressly held that an order of the district court vacating a judgment upon application made at a subsequent term is reviewable by this court. Before the present statute authorizing appeals in actions at law, the proceeding to reverse such final order was by petition in error. Now it is by appeal. In Kruger v. Adams & French Harvester Co., 9 Neb. 526, 4 N.W. 252, decided in 1880, the court said: "This court has repeatedly held that error would lie to this court from the judgment of the district court granting a new trial on proceedings commenced after the adjournment of the term on the ground of newly discovered evidence"--citing Iler v. Darnell, 5 Neb. 192; Axtell v. Warden, 7 Neb. 186.
In Estate of McKenna v. McCormick, 60 Neb. 595, 83 N.W. 844, the law is stated in the syllabus: "An order of a probate court, entered under the provisions of subdivision 3 of section 602 of the Code of Civil Procedure, vacating an order allowing a claim against an estate made at a prior term, is appealable."
In Johnson v. Parrotte, 34 Neb. 26, 51 N.W. 290, the court said:
In Thompson v. Sharp, 17 Neb. 69, 22 N.W. 78; Osborn v. Gehr, 29 Neb. 661, 46 N.W. 84; Lander v. Abrahamson, 34 Neb. 553, 52 N.W. 571; Janes v. Howell, 37 Neb. 320, 55 N.W. 965; Scott v. Wright, 50 Neb. 849, 70 N.W. 396; Munro v. Callahan, 55 Neb. 75, 75 N.W. 151; McGrew v. State Bank, 60 Neb. 716, 84 N.W. 99; Meyers v. Smith, 59 Neb. 30, 80 N.W. 273; Williams v. Miles, 73 Neb. 193, 102 N.W. 482; Godfrey v. Cunningham, 77 Neb. 462, 109 N.W. 765; Wagener v. Whitmore, 79 Neb. 558, 113 N.W. 238; State v. Merchants Bank, 81 Neb. 704, 116 N.W. 667; MacCall v. Looney, 4 Neb. (Unof.) 715, and some other cases, appeals from judgments vacating former judgments, as in this case, were entertained and decided upon their merits. In some of them the judgment of the district court is reversed; in others it is affirmed; but in none of these many cases is the right to appeal before the final determination of the case in which the original judgment was rendered doubted. The fact that the former case had not been retried appeared upon the face of the record in each case and could not be overlooked. These cases must be considered as setting the question. 2 R. C. L. sec. 27, p. 44, and cases cited.
When a proceeding is begun by a petition to vacate or modify a judgment after the term at which that judgment was rendered, and evidence must be taken and a trial had upon that petition, the decision of the court is itself a judgment, within the meaning of section 582 of the Code. In such case it is not necessary to consider the definition of a final order as contained in section 581 of the Code. Moreover, the proceeding is in the nature of an action, within the meaning of section 582, and the decision therein is a final determination of that action.
The plaintiff cites several cases as holding that such judgment is not a final judgment and not appealable. In Rose v. Dempster Mill Mfg. Co., 69 Neb. 27, 94 N.W 964, it is said in the syllabus: "An order setting aside a judgment or decree, fixing the time for filing pleadings, and setting the cause down for a new trial, under section 602 of the Code, is not a final order from which appeal or error will lie before trial and a final judgment." It appears from the opinion that a deficiency judgment had been rendered in a mortgage foreclosure proceeding, and upon petition of the defendant the judgment was set aside, and defendant was allowed to answer. The plaintiff prosecuted a petition in error to this court, and the defendant moved to dismiss the petition in error. It is not stated whether the petition to vacate the judgment was filed during the term at which the judgment was entered, and the grounds upon which the petition was predicated are not stated in the opinion. It is, however, stated that the proceeding was under section 602 of the Code, but it is not stated under which subdivision of that section. If under the third subdivision, the proceeding is by motion, and, if the ground is that the judgment was rendered before the action regularly stood for trial, that motion must be made "in the first three days of the succeeding term." The decision in Rose v. Dempster Mill Mfg. Co., is predicated on Morse & Co. v. Engle, 26 Neb. 247, 41 N.W. 1098, and quotation is made from the opinion in that case. In Morse & Co. v. Engle, the appeal was taken from an order vacating the decree of foreclosure of mortgage. A motion was made to dismiss this appeal because the order appealed from was not final, and the motion to dismiss was overruled, and the appeal entertained. The decision was that an appeal was proper in an action in equity, and that in an action at law, under the statute as it then was, "the proper practice is by petition in error," thereby holding that, in any event, the order...
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