Coates v. O'Connor

168 N.W. 102, 102 Neb. 602, 1918 Neb. LEXIS 101

• Court: Nebraska Supreme Court
• Decided: June 15, 1918
• Docket: No. 19630
• Status: Published

Opinions

Hamer, J.

This is an appeal from an order • made on' a motion to set aside a judgment and an order of confirmation of real estate sold under attachment. The application and motion were overruled, and the defendant has appealed.

The action was brought on an account for work and labor and for nursing- the defendant’s wife, the plaintiff’s mother, during an illness. The court made an order permitting service by publication, and also issued an order of attachment, which was levied on two lots of defendant situated in an addition to the city of Lincoln. The service was made, by publication. The plaintiff and defendant were residents of California. There was a default taken against the defendant on the 27th day of September, 1915, and a judgment was entered for $600, and the attached property was ordered to be sold to satisfy the judgment and costs. The lots appear to have been advertised together, and were sold November 30, 1915, to Roy A. Bickford for $600. The case was set for hearing on an application for an order of confirmation December 4,1915. On that date the order of confirmation was made, and the, sheriff was ordered to make a deed to the purchaser. The order of confirmation is shown by the journal, entry to have been made December 4, 1915. The order to show cause only left two intervening days between its date and the time fixed as “Friday next” when canse should be shown why the sale should not be confirmed. The rather rapid succession of the orders indicates some desire on the part of the plaintiff to “speed up.” The facts seem to show that the confirmation was rapidly expedited, and on the same day that the sale was confirmed the sheriff’s deed was delivered to the purchaser. That the purchased had notice that the proceeding would be contested is quite apparent, and the utmost haste was made to get in out of the possible raiii before the storm arrived.

The facts set forth in the affidavits of C. C. Flansburg and Leonard A. Flansburg,. in behalf of defendant, do not seem to be specifically denied, but only partly and in a vague way. The affidavits deny the employment' of appellee and deny that any services were rendered. It is undisputed that some of the essential allegations of the petition were false.

If the facts alleged in the answer tendered by the defendant are true, then the judgment rendered takes away from the defendant at least $1,600 worth of property on a debt which he did not owe. According to the answer there was never any foundation for the claim of the plaintiff, and what she did, if the affidavits are to be believed, was to avoid stating her claim to the defendant, and, without letting him know that she claimed any sort of indebtedness against him, she went out of the neighborhood where they lived and went to a foreign state for the purpose of surreptitiously attaching and selling his property there without his knowledge.

No one disputes the affidavit of O’Connor that the plaintiff was his mother-in-law; that she and her husband came to the defendant O’Connor’s home in California; that the plaintiff was never requested to nurse her daughter, or to do the housework; that there was a nurse, and that there was a servant employed who did the housework part of the time; that the plaintiff never requested payment from her son-in-law, or in any way indicated that she- believed her son-in-law owed her, although he was financially able tp pay her. The case wholly depends on affidavits. The plaintiff, without letting her son-in-law know that she had any claim against him, commenced this case in a foreign state by attachment against his city lots. All the parties seem to have acted with more or less notice and more or less knowledge, of the rights of all the parties. Where it is shown that there is a good defense, and that failuré to defend was due to the mistake or miscalculation of defendant’s attorneys as to the time allowed to plead, an application to open the judgment made at the same term should be sustained. A reasonable opportunity should not be denied to the defendant. If the plaintiff has a cause against him, she should be able to make it when the case is heard before a court and a jury.

Decisions cited by appellee in actions or motions for new trial after the term at which the judgment was entered are not in point. When default judgment is entered, without personal service and on constructive service only, and application is made at the same term for an opportunity to defend, and a good' defense is shown with the application, the trial court will generally allow the defendant an opportunity for trial upon the merits. If the failure to appear and defend is attributable to negligence or carelessness of defendant, the court will impose such terms as to costs as appear to be just. But when, as in this ease, the proceedings have been urged with unseemly haste on the part of the plaintiff, and there has been evidence offered of an attempt on plaintiff’s part to prevent settlement or. a fair trial, if application for a trial upon the merits is made at the same term, and within a few days after the default and sale, such application is never refused. Under such circumstances, one who purchases the property at the sale for a mere fraction of its real value will be held to have acted at his own risk, so far as the rights of the defendant are concerned. His rights as against the plaintiff and those assisting him will depend upon circumstances not affecting the defendant. In Bigler v. Baker, 40 Neb. 325, this court said, in substance, that in reversing a decision of tbe lower court on a motion to vacate a judgment, it will, in deciding whether or not there was an abuse of discretion, require a much stronger showing to substantiate an abuse of discretion when the judgment is vacated, than when it is not. In 23 Cyc. 897, it is said: “If he (the party) shows himself plainly and justly entitled to the relief demanded, the court must grant the application and has no discretion to refuse it. ’ ’

We think that the order of confirmation should be set aside, and the case opened, with leave to the defendant to make such defense as the facts in the case may warrant.

Reversed and remanded.