Cleland v. Hamilton Loan & Trust Co.

Sullivan, J. Mary' J. Cleland and Isaac G. S. Cleland are husband and wife and for some years prior to the commencement of this action occupied the real estate here in controversy as a family homestead, the title thereto being in Mrs. Cleland. In 1889 Cleland borrowed from the Hamilton Loan & Trust Company $6,500, giving as security therefor two mortgages on this property, executed by himself and purporting to have been signed and acknowledged by his wife. The money thus obtained was intended to be used, and in fact was used, in paying off mortgages on the premises then existing and of unquestioned validity. Afterwards the loan and trust company [14] brought an action in the district court of Adams county to foreclose one of said mortgages and caused a summons to be issued and personally served on Mrs. Cleland. She, however, made no appearance in the case and judgment was rendered against her by default on December 16, 1890. In execution of the decree of foreclosure the premises were subsequently offered for sale and sold to the Hamilton Loan & Trust Company, and at the November, 1892, term of the court the sale was confirmed and a writ of possession ordered to be issued in favor of the purchaser. Such process was thereupon issued, and, to prevent its enforcement and to secure a vacation of the order of confirmation and decree of foreclosure, Mrs. Cleland commenced this action in the district court, alleging in her petition that she never signed or acknowledged a mortgage to the Hamilton Loan & Trust Company, and that when served with summons in the original case she supposed the writ was issued in a suit to foreclose a mortgage previously given by her to one Deitz and to which she had no defense. There was a trial of the issues, resulting in a general finding and judgment in favor of the loan and trust company, and Mrs. Cleland brings the cause to this court by appeal. We entirely agree with appellant that her signature to the mortgage in question was forged and that the notarial certificate of her acknowledgment was false. These facts are indisputably established by the proof. Nevertheless, the decree of the district court is right and must be affirmed. It is an inflexible rule that a party seeking relief in equity from a judgment taken against him by default must exhibit a defense to the action and also show that such judgment is the result of fraud, accident, or mistake, unmixed with fault op negligence on his part. A judgment will not be set aside on the application of a party who has, by his own laches, failed to avail himself of an opportunity to defend. This salutary rule rests on principle and authority, and its rigid enforcement is necessary for . the repose of society, by [15] preventing litigation from becoming interminable. (Duncan v. Lyon, 3 Johns. Ch. [N. Y.] 351; Center Township v. Marion County, 110 Ind. 579; Bankers Life Ins. Co. v. Robbins, 53 Neb. 44; Funk v. Kansas Mfg. Co., 53 Neb. 450; Sargeant v. Bigelow, 24 Minn. 370; Langley v. Ashe, 38 Neb. 53; Norwegian Plow Co. v. Bollman, 47 Neb. 186; Pope v. Hooper, 6 Neb. 178.) In tbe last mentioned case tbe rule is stated in tbe syllabus as follows: “In an original action in equity to vacate a judgment or decree, if tbe ground of complaint is not tbe result of fraud on tbe part of tbe plaintiff, or some circumstance beyond tbe control of tbe defendant, but is occasioned by tbe fault, negligence, or want of ordinary diligence on tbe part of tbe defendant, be will not be permitted to deny tbe correctness of tbe judgment or decree, or renew tbe controversy.” But appellant contends that sbe was justified in assuming that tbe action in wbicb sbe was served with summons was brought to foreclose tbe Deitz mortgage and that, therefore, sbe was not negligent in failing to appear and defend. Tbe case of Young v. Morgan, 9 Neb. 169, is instanced in support of this contention, but we do not think it is in point. In that case it appears that Mrs. Young bad signed a note in favor of tbe plaintiffs in tbe action, and when sued sbe refrained from making a defense, having good reason to believe that her genuine obligation was tbe basis of tbe suit. In tbe language of Maxwell, J., delivering judgment, “Tbe plaintiff bad tbe right to presume that tbe note with her genuine signature was tbe one upon which tbe suit was instituted, and it was not necessary to suppose that tbe crime of forgery bad been committed by affixing her name to notes of wbicb sbe bad no knowledge.” Besides, in that case it was alleged in tbe petition and admitted by tbe demurrer that tbe plaintiffs knew when tbe judgment was taken that tbe notes in suit were mere forgeries. In tbe case at bar it seems that tbe Hamilton Loan & Trust Company bad no knowledge prior to tbe [16] commencement of this action that Mrs. Clelancfs signature to their mortgage was not genuine-. When the summons was served on her she read it and knew by whom she had been sued. She had no right to assume that the Hamilton Loan & Trust Company had brought an action against her to foreclose the Deitz mortgage. To act on that assumption and fail to take any steps, or make any inquiry, to ascertain the nature of the action was an exhibition of indifference to her own interests clearly amounting to negligence. The judgment of the district court is technically correct, it does substantial justice between the parties, and is Affirmed. Ragan, C., not sitting.