25-2002 District court judgment; proceedings to vacate or modify; summons; waiver of error.
25-2002. District court judgment; proceedings to vacate or modify; summons; waiver of error.The proceedings to vacate or modify the judgment or order on the grounds mentioned in subsection (4) of section 25-2001 shall be by complaint, setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying was defendant. On such complaint a summons shall issue and be served as in the commencement of an action. Summons shall not issue in any case in which there is upon the minutes of the court, or among the files of the case, a waiver of error by the party or the party's attorney, unless the court or a judge thereof endorses upon the complaint permission to issue such summons. SourceR.S.1867, Code § 603, p. 501; R.S.1913, § 8208; C.S.1922, § 9161; C.S.1929, § 20-2002; R.S.1943, § 25-2002; Laws 2000, LB 921, § 18; Laws 2002, LB 876, § 28.Annotations1. Jurisdiction2. Pleading3. Evidence4. Miscellaneous1. JurisdictionThe provisions of this section apply only to a modification of a judgment entered at a subsequent term. Hyde v. Shapiro, 216 Neb. 785, 346 N.W.2d 241 (1984).Fraud may only be taken advantage of by action. Gasper v. Mazur, 157 Neb. 857, 62 N.W.2d 117 (1954).Final order of county court in proceeding to set aside fraudulent judgment after term is reviewable by district court on appeal. Gainsforth v. Peterson, 114 Neb. 442, 207 N.W. 935 (1926).District judge is not vested with jurisdiction at chambers to modify judgment, except by consent. Nicholson v. Getchell, 113 Neb. 248, 202 N.W. 618 (1925).2. PleadingProceedings to vacate or modify a judgment or order on the grounds mentioned in section 25-2001 shall be by petition verified by affidavit. Haen v. Haen, 210 Neb. 380, 314 N.W.2d 276 (1982).To obtain relief for vacation of judgment at subsequent term, petition must be filed. Shipley v. McNeel, 149 Neb. 793, 32 N.W.2d 636 (1948).Application for modification should set forth the defense the applicant has to the original action. Hoeppner v. Bruckman, 129 Neb. 390, 261 N.W. 572 (1935).Petition to vacate judgment for fraud filed more than two years after the entry thereof, which showed discovery of fraud within two-year period but alleged no ground for extending period, was properly stricken. Brandeen v. Beale, 117 Neb. 291, 220 N.W. 298 (1928).Suit in equity to cancel judgment should be dismissed where facts pleaded fail to disclose meritorious defense. Westman v. Carlson, 86 Neb. 847, 126 N.W. 515 (1910).Petition need not be verified positively. Anthony & Co. v. Karbach, 64 Neb. 509, 90 N.W. 243 (1902).Petition must show one of grounds in preceding section. Kirkham v. Gibson, 52 Neb. 23, 71 N.W. 960 (1897).3. EvidenceNot error to deny defendant a separate trial where codefendant's inculpating testimony subject to full cross-examination and no prejudice shown to defendant. State v. Edwards, 197 Neb. 354, 248 N.W.2d 775 (1977).It is error to vacate judgment assailed by petition without evidence to sustain allegation of petition. Trimble & Blackman v. Corey & Son, 78 Neb. 639, 111 N.W. 376 (1907).4. MiscellaneousTo vacate for irregularity, it is unnecessary to tender answer with motion. Fisk v. Thorp, 60 Neb. 713, 84 N.W. 79 (1900).Defense need not be complete to entire claim; it is sufficient if it be to a substantial part. Kime v. Fenner, 54 Neb. 476, 74 N.W. 869 (1898).