Pope v. Hooper

6 Neb. 178

• Court: Nebraska Supreme Court
• Decided: October 15, 1877
• Status: Published

Opinions

Gantt, J.

This action was commenced by petition in equity in the district court by defendant in error to vacate a decree of foreclosure and order of sale rendered at the October Term, 1875, of said court. The grounds alleged for vacating the decree are in substance as follows^ That, the decree included the entire amount of the debt secured by the notes and mortgage, though only a part of the, same was then due; that the decree was taken for more than the whole amount of such debt, and for too much interest; that defendant, Elizabeth Hooper, was a married woman, and the summons was irregularly issued. The plaintiff denies the allegations of the petition, except that defendant Elizabeth Hooper was a married woman, and denies that the decree included more land than is described in the mortgage; and then sets up as new matter that the defendants employed counsel to appear for them in the foreclosure case, who had the cause passed for several days by the court, and examined the matter before the decree was taken; that defendants entered a stay of the order of sale, and that in December, 1875, the full amount of the decree was satisfied and discharged of record.

It appeared that the summons was technically defective in form, which defect might perhaps have been taken advantage of upon motion by the defendants, but it was no such defect as bars the jurisdiction of the court over the subject matter and the defendants.

It appeal’s by the evidence that counsel was employed by defendants in the foreclosure case, at whose request the cause was passed several days by the court, and that after the decree was taken the proper stay was entered; and the evidence further shows that the plaintiff advanced and paid other large sums of money for the defendants, and that- the parties, on or about the first day of December, 1875, had a settlement of all their matters, including the amount of the decree of foreclosure at $4,473.14, and found the sum total due plaintiff by defendant, Richard, to be $5,400, for which amount the defendant gave plaintiff a new note, and to secure the same executed and delivered to her a mortgage, including the lands in the former mortgage and other lands; that this “new note was given to pay off the judgment and decree,” and secure the amount thereof and other sums advanced and paid by plaintiff for defendants, and that “ the de.cree was satisfied and receipted in accordance with the terms of the settlement,” and discharged of record.

The mortgage on which the foreclosure was had contained a stipulation “ that if any of said 'notes become due and remain unpaid for ninety days thereafter the whole of said notes aforesaid shall become due,” and also for the payment of an attorney’s fee of one hundred dollars in case of a foreclosure of said mortgage. Now in respect to this stipulation, it is only necessary to observe that the parties, being competent to contract, could legally contract as to the time and mode of payment of the notes, and having done so, and fixed the conditions upon which the payment of the notes must be made, the court is bound to give effect to their contract according to the terms therein expressed. Such condition of payment is not in the nature of a forfeiture. The debt only as shown by the face of the notes was required to be paid, and therefore there can be no forfeiture to be relieved from. Hall v. Gouveneur, 4 Ed. Ch., 208. Noyes v. Clark, 7 Paige, 179. Vallentine v. Wagoner, 37 Barb., 60. Sanclift v. Norton, 11 Kan., 222.

In Lieman v. Hinman, 16 Ill., 404, referred to by counsel for defendants, the court merely decided that upon the contract involved in the case the recovery of interest from the commencement of the action was not authorized by the statute; and in Crane v. Dwyer, 9 Mich., 352, “ the case made by the bill is a forfeiture of one of the defendants of all her rights in a contract made with complainant for the purchase of a lot of ground,” and it was held that equity will not lend its aid to enforce such a forfeiture. These cases do not, either in principle or fact, apply to the case at bar.

Again, it is alleged as cause for moating the decree that it included too (much interest. Five notes were given by defendants to plaintiff, to secure which the mortgage was executed; and it appears that interest up to the time each note respectively became due was included as part of the principal, and that the decree was taken for the amount as appeared on the face of the several notes,'without deducting therefrom .the interest from that time until the time they would severally become due. And this constitutes the main subject of complaint, and presents for consideration the question whether, after permitting the decree to be so taken by their own negligence and disregard of the process of the court, and after several terms of the court had passed, the defendants are entitled to have the decree vacated for this cause by original petition. The gravamen of the action is to vacate a decree by original petition long after the term has passed at which it was rendered by the same court. In Sibbold v. United States, 12 Peters, 492, it is said that “ no principle is better settled, or of more universal application, than that no court can reverse or annul its own final decrees or judgments for errors of facts or law after the term in which they have been rendered, unless for clerical mistakes, from which it follows that no change or modification can be made which may substantially vary or affect them in any material thing. Bills of review in cases of equity, and writs of error coram vobis at law are exceptions.” And in Brooks Admr. v. Love, 3 Marsh., 7, it is said: “It is well settled as a general rule, that the chancellor (except in cases specially provided for by statute) cannot open, alter, or reverse a final decree after the expiration of the term at which it was rendered, unless upon bill of review, or bill or petition impeaching the decree for fraud.” Bramlett’s heirs v. Pickett’s heirs, 2 A. K. Marsh, 11. Davone v. Fanning,4 John Ch., 203. Murray v. Murray, 5 John Ch., 69. Bank of Va. v. Craig, 6 Leigh, 439. It seems that in such case, the remedy is by “ bill or petition for review, writ of error, or appeal, as either may be appropriate or allowable by law, or by some other mode specially provided by statute.” But, further, it appears quite clear from the evidence that the defendants had ample opportunity.to make defense to the whole or part of the demand against them in the foreclosure case; and although they had counsel employed in the foreclosure case, yet they disregarded the process of the court, and manifested great negligence and indifference in respect to the matter; and in such case, has a court of equity under the well settled rules of law, power to grant him the relief he asks?

In Horn v. Queen, 4 Neb., 113, 114, it is said that “ equity, will grant relief in a. proper case where fraud has been practiced by the successful party in obtaining the judgment, or where from accident or unavoidable circumstances, without fault on the part of the party applying therefor, a full and fair trial has not been had.” And on this ground a new tidal was granted in this case; but, after citing the case of Lieby v. Heirs of Ludlow, 4 Ohio St., 493, with approval, in which it is held that “ before a court of chancery will order' a cause to be reheard at law they will require the complainant to show that he used due diligence in preparing and conducting his defense at law, and that he was prevented from then making it by circumstances beyond his control,” it was by the unanimous opinion of this court said that: “We think this is clearly the law that a fa/rty must hme done all he could wider the cvrcwnstcmces, that he has not been negligent, and that he must show he has a defense to the action.” This is a precise statement of the rule, and is substantially reiterated in the same case, brought a second time to this court, and reported in 5 Neb., 472. And in Green v. Hamilton, 16 Md., 329, 331, it is held that if the defendant “ absents himself he has no better standing in court afterwards than a defendant who defends his cause,” for “to allow a defendant who was absent without any fault on the part of his adversary to come in after the term and have redress would be reversing the maxim, vigilantibus etnondormientibus ju/ra subveniimt."

But the principle is not questioned that power to set aside judgments and decrees, upon sufficient showing by motion made during the term at which they are rendered, is a common law power incident to courts of record; and that upon motion after the term has passed this power may be exercised to correct clerical mistakes or irregularities so as to reform a judgment, but not to vacate it, or to make any change or modification that may substantially vary or affect it in any material thing, unless by some circumstance beyond the control of the defendant, and without any negligence on his part, he was prevented from having a fair trial. Hence, if the cause of complaint is not the result of fraud on the part of the plaintiff, or of some circumstance beyond the control of the defendant, but is occasioned by the fault, negligence, or want of ordinary diligence on the part of the defendant, he will not be permitted to deny the correctness of the determination, or to renew the controversy. This seems to be the well settled rule founded on both principle and authority, and to be of universal application, and if it were not so, it is quite manifest that litigation would be fruitless and endless. Hackworth v. Zollars, 30 Iowa, 486. Foster v. Wood, 9 John. Ch., 89. Pierce v. Kneeland, 9 Wis., 31. Catlin v. Robinson, 2 Watts, 380. Bank of U. S. v. Mass., 6 How., 38. 39 Cal., 303. 44 Mo., 570.

In Huntington v. Finch & Co., 3 Ohio State, 447-8, it is held that the court “has control over its own orders and judgments during the term at which they are rendered, and the power to vacate or modify them in its discretion. But this discretion ends with the term, and no such discretion exists at a subsequent term of the court. And the power of the court to set aside or vacate its judgments subsequent to the judgment term is governed by settled principles, to which the action of the court must conform. It is well settled in this court that a judgment may be vacated or set aside, on motion at a term subsequent to the judgment term, for irregularity or improper conduct in procuring it to be entered; and this has become one of the accustomed and settled remedies for relief against judgments wrongfully obtained, where the impropriety or irregularity has not been superinduced by the fault or negligence of the judgment debtor.” In Bank v. Doty, 9 Ohio State, 509, the court say: “The record shows that the common pleas, in fact, had no jurisdiction of the persons of the defendants.” In principle then, it seems the Ohio cases are in harmony with the general rule, and have not departed from it.

Again, it is to be observed that “in accordance with the terms of the settlement ” made between the parties subsequent to the rendition of the decree, the new note and-mortgage were executed and taken in satisfaction of the decree complained of, and that by the terms of this settlement and contract the decree was receipted and discharged. No ground is stated or prayer made in the petition to set aside this discharge of the decree, and until this is done, it is difficult to perceive how the court can vacate a decree which is discharged. It must therefore follow as a necessary sequence, that when a decree is fully satisfied and discharged it can have no more .legal effect than if it never had been rendered, and hence', if there was any sufficient ground to restore the parties to the relations existing between them before the decree was rendered, should not the satisfaction and discharge of it be first removed?

Some clerical mistakes or irregularities occurred in the foreclosure case, but as this action is to vacate the decree, and as they could not, in any view of the case, be reformed in this kind of action, it is not necessary to express any opinion in regard to them. It is, however, urged in the argument for defendants, that as defendant, Elizabeth Hooper, is a married woman, being the wife of Richard, the other defendant, this action by original petition may be maintained under subdivisions three and five, of section six hundred and two of the civil code. Conceding that this statute may be strictly applied to an action in equity, it must still be observed, that subdivision three seems to be merely declaratory of the common law power incident to courts of record— a power which may, in a proper ■ case, be exercised for .the correction of clerical mistakes, etc.; and section six hundred and four requires that “ proceedings to correct mistakes, etc., shall be by motion;” hence the case at har does not come within this subdivision. And the power to vacate or modify judgments under the provisions of subdivision five is confined to “erroneous proceedings against an infant, married woman, or persons of unsound mind; ” and this provision was intended for the proteo'tion of persons subject to legal disability, but by section three of the act of June 1, 1871, it was enacted that “ a married woman may, while married, sue and be sued, in the same manner as if she were unmarried.” Therefore this, act of 1871 has wholly removed the common law disability of a married woman, and consequently she no longer comes within the protection of the provisions of this subdivision; nor does the case at bar come within any of the other provisions of section 602.

Finding no cause, either in law or fact, to justify the court in vacating the decree, and as this case is brought into this court upon error, and not by appeal, the decree rendered in the court below in the case at bar must be reversed, and for the reasons given in this opinion it is now ordered adjudged, and decreed that the defendant’s cause of action be dismissed with costs.

Lake, Ch. J., concurs.