Reports of Cases in the Supreme Court of Nebraska (Volume 48)

9781235737091: Reports of Cases in the Supreme Court of Nebraska (Volume 48)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1896. Excerpt: ... Western Assurance Co. of Toronto v. Klein. suit would probably follow. The facts stated in the petition of the assurance company for the vacation of the judgment rendered against it in favor of Klein did not invoke the general equity powers of the district court, but the petition of the assurance company, as already stated, was framed under said section 602 of the Code, and therefore we think that to authorize the district court to have set aside the judgment it must have made a finding--it must have adjudged--based on evidence introduced by the assurance company that in its, the court's, opinion the assurance company had a defense to Klein's action. In Thompson v. Sharp, 17 Neb., 69, it was held that in proceedings instituted under the provisions of the Code to vacate a judgment after the term at which it was rendered the court must first pass upon the grounds to vacate the judgment, and if the grounds alleged for its vacation were established, the court should next inquire into the cause of action or defense, and if both these matters were found in favor of the applicant, the judgment should be set aside; otherwise not. In Osborn v. Oehr, 29 Neb., 661, it was held that a court of equity would not set aside a judgment regular on its face unless it was shown that no cause of action existed at the time in favor of the party obtaining the judgment. See, also, Janes v. Howell, 37 Neb., 320, and Bond v. Wycoff, 42 Neb., 214, where the court, in construing said section 606 of the Code, said: "Before plaintiffs in error were entitled to have the judgment against them set aside, it was necessary for them to allege and prove that they had a valid defense, in whole or in part, to the cause of action stated in the petition." The judgment of the district court is Af...

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