25-525. Judgment on constructive service; how opened; procedure.

A party against whom a judgment or order has been rendered without other service than by publication in a newspaper may, at any time within five years after the date of entry of the judgment or order, have the same opened to allow the applicant to appear in court and make a defense. Before the judgment or order is opened, the applicant shall give notice to the adverse party of the intention to make such application and shall file a full answer to the petition or complaint, pay all costs, if the court requires them to be paid, and make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action the applicant had no actual notice thereof in time to appear in court and make a defense. The title to any property, the subject of the judgment or order sought to be opened, which by it, or in consequence of it, has passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall the proceedings affect the title of any property sold before judgment under an attachment. The adverse party, on the hearing of an application to open a judgment or order, as provided by this section, shall be allowed to present counter-affidavits, to show that during the pendency of the action the applicant had notice thereof in time to appear in court and make a defense.

Source

Annotations

1. Sufficiency of application

2. Notice to plaintiff

3. Title to conveyed property

4. Miscellaneous

1. Sufficiency of application

Before party can have judgment opened, it must appear that he had no actual notice of the pendency of the action in time to make defense. McNally v. McNally, 152 Neb. 845, 43 N.W.2d 170 (1950).

Verified petition filed by parties seeking to open up judgment under this section was equivalent to affidavit and answer required thereunder. Nelson v. Nelson, 113 Neb. 453, 203 N.W. 640 (1925).

Application was sufficient to authorize vacation of judgment. Eno v. Lampshire, 108 Neb. 265, 187 N.W. 782 (1922).

Ordinarily only party can make affidavit, but may be made by attorney where party is nonresident. Cass v. Nitsch, 81 Neb. 228, 115 N.W. 753 (1908).

On application, defendant cannot contest sufficiency of original petition; "full answer" means meritorious answer. Oakes v. Ziemer, 62 Neb. 603, 87 N.W. 350 (1901).

To permit a defendant to open up decree, full answer to the merits must be presented. Oakes v. Ziemer, 61 Neb. 6, 84 N.W. 409 (1900).

Defendant must show he did not have actual notice of suit in time to make defense; adverse party may present counteraffidavits. Stover v. Hough, 47 Neb. 789, 66 N.W. 825 (1896).

Party seeking to have judgment opened up must allege and prove bona fides. McGregor v. Eastern B. & L. Assn., 5 Neb. Unof. 563, 99 N.W. 509 (1904).

Motion to vacate judgment after term must tender valid defense which court will adjudge prima facie valid. Waters v. Raker, 1 Neb. Unof. 830, 96 N.W. 78 (1901).

2. Notice to plaintiff

Appearance by party to resist motion to vacate waives notice. Scarborough v. Myrick, 47 Neb. 794, 66 N.W. 867 (1896).

Proceeding is continuation of original action; service of notice on plaintiff's attorney is sufficient. Merriam v. Gordon, 17 Neb. 325, 22 N.W. 563 (1885).

3. Title to conveyed property

Good faith purchaser of land at judicial sale is protected in event judgment reversed under this section. Pauley v. Knouse, 109 Neb. 716, 192 N.W. 195 (1923); Warren v. Dick, 17 Neb. 241, 22 N.W. 462 (1885).

Title of purchaser cannot be litigated in action, except perhaps where bad faith is charged. Security Abstract of Title Co. v. Longacre, 56 Neb. 469, 76 N.W. 1073 (1898).

A purchaser of land under a judgment subsequently opened is not a purchaser pendente lite. Scudder v. Sargent, 15 Neb. 102, 17 N.W. 369 (1883).

4. Miscellaneous

One seeking to open up a judgment secured by constructive service must act within five years and must, by a preponderance of the evidence, show that he had no notice prior to judgment and he must file a meritorious answer. Wittwer v. Dorland, 198 Neb. 361, 253 N.W.2d 26 (1977).

This section has no relation to filing of claims against estate. Supp v. Allard, 162 Neb. 563, 76 N.W.2d 459 (1956).

This section has no reference to a void judgment. Hassett v. Durbin, 132 Neb. 315, 271 N.W. 867 (1937).

Action to redeem from tax foreclosure was commenced in time hereunder. Walter v. Union R. E. Co., 107 Neb. 144, 185 N.W. 323 (1921).

Section is not applicable to proceedings before drainage district board. Richardson County ex rel. Sheehan v. Drainage Dist., 96 Neb. 169, 147 N.W. 205 (1914).

Relief may be granted after five years if proper petitions are presented before expiration of time. Affidavits are amendable. Rine v. Rine, 91 Neb. 248, 135 N.W. 1051 (1912).

Section does not relate to void judgments. Herman v. Barth, 85 Neb. 722, 124 N.W. 135 (1910); Hayes County v. Wileman, 82 Neb. 669, 118 N.W. 478 (1908).

Owner of land sold under scavenger tax law is not entitled to benefits of this section as matter of right. State v. Several Parcels of Land, 75 Neb. 538, 106 N.W. 663 (1906).

Defendant who conveyed his interest by quitclaim deed cannot move to vacate judgment. Browne v. Palmer, 66 Neb. 287, 92 N.W. 315 (1902).

Acknowledgment on summons is actual personal service; judgment cannot be opened. Cheney v. Harding, 21 Neb. 65, 31 N.W. 255 (1887).

Affidavit by an attorney who has personal knowledge of the want of "actual notice" will be sufficient to open the judgment in absence of counteraffidavits. In re Reed v. Estate of Thompson, 19 Neb. 397, 27 N.W. 391 (1886).

Opening judgment upon complying with the requirements of the statute is a matter of right. Brown v. Conger, 10 Neb. 236, 4 N.W. 1009 (1880).