Young v. Morgan & Gallager
| Decision Date | 01 July 1879 |
| Citation | 2 N.W. 237,9 Neb. 169 |
| Parties | ELLEN YOUNG, PLAINTIFF IN ERROR, v. MORGAN & GALLAGER, DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Platte county.
The action there was brought by plaintiff, Young, to restrain the sale of certain real estate, alleged to be her sole and separate property, which had been levied on by the sheriff of said county by virtue of an execution issued under a judgment recovered by Morgan & Gallagher against one Compton and said plaintiff. The defendants demurred to the petition, which was sustained by POST, J., and a judgment entered against the plaintiff for costs, and dismissing the action.
REVERSED AND REMANDED.
Marlow & Munger, for plaintiff in error.
The facts alleged in the petition, and admitted to be true clearly prove it to be against conscience to enforce the payment of the judgment. If this be true the plaintiff is entitled to the relief asked, notwithstanding she failed to defend before judgment. The Marine Insurance Co. of Alexandria v. Hodgson, 2 Cranch, U.S., 557. To entitle the plaintiff to be relieved from the payment of the judgment in question, she must have a defense upon the merits. It is admitted that the notes in question are forgeries, never having been signed by her, or by any one authorized to sign the same for her. It is further admitted that she did not owe Morgan & Gallagher the amount of said notes, or any other amount whatever, and never had any dealings with them in any way whatever. Her defense is complete; no recovery can be had against her on the notes.
Now we claim that the plaintiff is entitled to the relief asked without showing any excuse for not making her defense, after service of the summons, and before judgment was entered against her in the county court; the notes in question being forgeries, Morgan & Gallagher did not have a cause of action against her. It would be different if she had signed the notes, and they had been paid, and retained by them, or if she had paid a part of the amount due, but in this case there was nothing due, and never had been from her to them on the notes. In fact she did not owe them a farthing. She had the right to remain away, knowing that she did not owe them a penny. If the presumption was that Morgan & Gallagher would perjure themselves in order to obtain a judgment against her or that her name would be forged to notes, then the rule would be different. The presumption is the other way, that they would not perjure themselves in order to obtain a judgment against her, and that her name would not be forged to notes. We admit that she would not be justified in remaining away if Morgan & Gallagher had a cause of action against her, which she might defeat or reduce the amount by making her defense before judgment; in that case she would have to show some special reason why she did not defend before judgment.
Whitmoyer Gerrard & Post, for defendants in error.
Counsel for plaintiff have not cited any precedent for the relief asked. We believe none can be found. That courts of equity will not relieve a party from the consequences of his own negligence is an elementary principle of equity jurisprudence. He who suffers judgment by default, can claim no more from a court of equity than if the judgment had been on the verdict of a jury after a protracted suit. Pope v Hooper, 6 Neb. 178; Freeman on Judgments, 330, 385, 502, et. seq. The inflexible rule is that a party seeking relief in equity from a judgment at law must show clearly that the judgment complained of is the result of fraud, accident, or mistake, unmixed with fault or negligence of his own. Shriker v. Field, 9 Iowa, 366. Wright v. King, Har.'s Chancery, 12. Mack v. Doty, Id., 366. Graham and Waterman on New Trials, 560. Wells' Res Adjudicata, and Stare Decisis, 495, 496, 498, 499.
While no fraud or deception by the defendants is charged, the...
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