Nebraska Revised Statute 25-2001

Chapter 25 Section 2001

25-2001.

District court; power to vacate or modify judgments or orders.

(1) The inherent power of a district court to vacate or modify its judgments or orders during term may also be exercised after the end of the term, upon the same grounds, upon a motion filed within six months after the entry of the judgment or order.

(2) The power of a district court under its equity jurisdiction to set aside a judgment or an order as an equitable remedy is not limited by this section.

(3) Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court by an order nunc pro tunc at any time on the court's initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the case is submitted for decision in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

(4) A district court may vacate or modify its own judgments or orders after the term at which such judgments or orders were made (a) for mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order; (b) for fraud practiced by the successful party in obtaining the judgment or order; (c) for newly discovered material evidence which could neither have been discovered with reasonable diligence before trial nor have been discovered with reasonable diligence in time to move for a new trial; (d) for erroneous proceedings against an infant or person of unsound mind if the condition of such defendant does not appear in the record of the proceedings; (e) for the death of one of the parties before the judgment in the action; (f) for unavoidable casualty or misfortune, preventing the party from prosecuting or defending; and (g) for taking judgments upon warrants of attorney for more than was due to the plaintiff when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment.

Source

  • R.S.1867, Code § 602, p. 500;
  • Laws 1899, c. 87, § 1, p. 342;
  • R.S.1913, § 8207;
  • C.S.1922, § 9160;
  • C.S.1929, § 20-2001;
  • R.S.1943, § 25-2001;
  • Laws 1947, c. 84, § 2, p. 261;
  • Laws 1997, LB 1, § 2;
  • Laws 2000, LB 921, § 17.

Annotations

  • 1. Scope

  • 2. Fraud

  • 3. Irregularity

  • 4. Equitable relief

  • 5. Unavoidable casualty

  • 6. County court jurisdiction

  • 7. Omissions and mistakes

  • 8. Other grounds

  • 9. Miscellaneous

  • 1. Scope

  • A district court sitting as an appellate court has the same power to reconsider its orders, both inherently and under this section, as it does when it is a court of original jurisdiction. Capitol Construction v. Skinner, 279 Neb. 419, 778 N.W.2d 721 (2010).

  • After the final adjournment of the term of court at which a judgment has been rendered, a court has no authority to modify a judgment except for the reasons stated and within the time limited in this section. Andersen v. American Family Mut. Ins. Co., 249 Neb. 169, 542 N.W.2d 703 (1996).

  • Under this section, a district court has the power to vacate or modify its own judgment after term for one of nine reasons enumerated in the statute. However, this section is not the exclusive remedy for vacating or modifying a judgment after term; this section is concurrent with the courts' independent equity jurisdiction. DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (1994).

  • This statute provides the only vehicle for a direct action aimed at vacating an out-of-term district court decree. State ex rel. Ward v. Pape, 237 Neb. 283, 465 N.W.2d 760 (1991).

  • This section is not the exclusive remedy for vacating a judgment after the term has expired, but is concurrent with an independent equity jurisdiction. Joyce v. Joyce, 229 Neb. 831, 429 N.W.2d 355 (1988); Emry v. American Honda Motor Co., 214 Neb. 435, 334 N.W.2d 786 (1983).

  • This section authorizes the trial court to vacate its order for mistake, neglect, or omission of the clerk or for unavoidable casualty or misfortune, preventing the party from prosecuting or defending. In re Interest of C.M.H. and M.S.H., 227 Neb. 446, 418 N.W.2d 226 (1988).

  • The court has no authority to vacate or modify a judgment after the final adjournment of the term of court at which it was rendered except for the reasons stated and within the time limited in this section. State ex rel. Birdine v. Fuller, 216 Neb. 86, 341 N.W.2d 613 (1983); Emry v. American Honda Motor Co., 214 Neb. 435, 334 N.W.2d 786 (1983); In re Estate of Weinberger, 207 Neb. 711, 300 N.W.2d 818 (1981); Lienemann v. Lienemann, 197 Neb. 449, 249 N.W.2d 902 (1977); State v. Byrd, 186 Neb. 330, 183 N.W.2d 234 (1971); Kasparek v. May, 174 Neb. 732, 119 N.W.2d 512 (1963); Pep Sinton, Inc. v. Thomas, 174 Neb. 508, 118 N.W.2d 621 (1962); Stanton v. Stanton, 146 Neb. 71, 18 N.W.2d 654 (1945); Feldt v. Wanek, 134 Neb. 334, 278 N.W. 557 (1938).

  • Under section 24-310, R.R.S.1943, a trial court retains the authority to rule on a motion to vacate if the motion was made during the original term, even if none of the grounds listed in section 25-2001, R.R.S.1943, are met. Moackler v. Finley, 207 Neb. 353, 299 N.W.2d 166 (1980).

  • In absence of appeal, determination of trial court that class action was properly brought was final and, not being void, judgment could not be set aside. Gant v. City of Lincoln, 193 Neb. 108, 225 N.W.2d 549 (1975).

  • This section does not apply to subsequent proceedings authorized by statute that relate to the division, disposition, and enforcement of the judgment, including application for attorney's fees. Versch v. Tichota, 192 Neb. 251, 220 N.W.2d 8 (1974).

  • Power to vacate judgment after term is not in any way affected by the taking of an appeal from original judgment. Simmons v. Lincoln, 176 Neb. 71, 125 N.W.2d 63 (1963).

  • Divorce decree may be vacated at subsequent term. Attebery v. Attebery, 172 Neb. 671, 111 N.W.2d 553 (1961).

  • After adjournment of the term, a new trial may be granted on any of the grounds stated in this section. Harman v. Swanson, 169 Neb. 452, 100 N.W.2d 33 (1959).

  • Injunction decree could not be modified at subsequent term of court except as provided by this section. Rose v. Vonderfecht, 167 Neb. 276, 92 N.W.2d 691 (1958).

  • District court may set aside an order vacating a decree of divorce. Vasa v. Vasa, 165 Neb. 69, 84 N.W.2d 185 (1957).

  • After adjournment of term dismissal without prejudice can only be set aside upon compliance with this section. Brown v. Lincoln, 157 Neb. 840, 61 N.W.2d 836 (1954).

  • After final adjournment of term, court could not set aside confirmation of sale except in accord with this section. Gasper v. Mazur, 155 Neb. 856, 54 N.W.2d 66 (1952).

  • In appropriate and timely proceedings, district court has jurisdiction to set aside approval of property settlement in divorce decree. Pasko v. Trela, 153 Neb. 759, 46 N.W.2d 139 (1951).

  • To be entitled to maintain an action in equity to vacate a judgment and obtain a new trial, the litigant must show, without fault or laches on his part, he was prevented from proceeding under this section. Nemetz v. Nemetz, 152 Neb. 178, 40 N.W.2d 685 (1950).

  • District court has power to vacate or modify its judgment entered on appeal from workmen's compensation court. Miller v. Schlereth, 151 Neb. 33, 36 N.W.2d 497 (1949).

  • If application to vacate judgment is filed more than ten days after rendition in a subsequent term, it must set out one of grounds necessary to authorize vacation at subsequent term. Shipley v. McNeel, 149 Neb. 793, 32 N.W.2d 636 (1948).

  • District court has inherent power during term to vacate default judgment. Barney v. Platte Valley, P. P. & I. Dist., 147 Neb. 375, 23 N.W.2d 335 (1946).

  • Trial court may vacate a judgment rendered at a previous term only for reasons enumerated and within time limited by statute. Elvidge v. Brant, 131 Neb. 1, 267 N.W. 169 (1936); Cronkleton v. Lane, 130 Neb. 17, 263 N.W. 388 (1935).

  • District court has power to vacate or modify its judgments or orders after term at which made only for reasons stated and within time limited in this article. Hoeppner v. Bruckman, 129 Neb. 390, 261 N.W. 572 (1935); Lyman v. Dunn, 125 Neb. 770, 252 N.W. 197 (1934); State ex rel. Sorensen v. Security State Bank of Plainview, 125 Neb. 516, 251 N.W. 97 (1933).

  • Order granting new trial under this section is reviewable on direct appeal to Supreme Court. Ward v. Geary, 115 Neb. 58, 211 N.W. 208 (1926).

  • Probable, but not decided, that proceedings were sufficient to justify relief hereunder. Nelson v. Nelson, 113 Neb. 453, 203 N.W. 640 (1925).

  • Order setting aside divorce decree after term can be vacated only in manner prescribed herein. Carmony v. Carmony, 112 Neb. 651, 200 N.W. 830 (1924).

  • Where defendant's attorney failed, because of illness, to file transcript on appeal in time, party must proceed hereunder. Welsh v. Valla, 102 Neb. 84, 165 N.W. 895 (1917).

  • Order approving guardian's final account was vacated where based on signed statement fraudulently procured from ward. In re Hilton, 99 Neb. 387, 156 N.W. 659 (1916).

  • Provisions of this section are concurrent with independent equity jurisdiction. Abbott v. Johnston, 93 Neb. 726, 141 N.W. 821 (1913).

  • After term party cannot open decree except for grounds named or on petition in equity. Hitchcock County v. Cole, 87 Neb. 43, 126 N.W. 513 (1910).

  • In exercise of original jurisdiction of Supreme Court, this section applies. State ex rel. Caldwell v. Lincoln Street Ry. Co., 80 Neb. 352, 118 N.W. 326 (1908).

  • Discretion to vacate judgments ends with term. State v. State Journal Co., 77 Neb. 771, 111 N.W. 118 (1907).

  • There is no jurisdiction after term except for causes named. Meade Plumbing, Heating & Lighting Co. v. Irwin, 77 Neb. 385, 109 N.W. 391 (1906).

  • Failure to proceed by motion to obtain new trial does not preclude action in equity. Bankers Union of the World v. Landis, 75 Neb. 625, 106 N.W. 973 (1906).

  • Interlocutory order may be reversed and vacated at subsequent term without compliance with this section. Huffman v. Rhodes, 72 Neb. 57, 100 N.W. 159 (1904).

  • Section is applicable to divorce decrees. Schafer v. Schafer, 71 Neb. 708, 99 N.W. 482 (1904).

  • Decree setting aside fraudulent conveyance could not be vacated at subsequent term except by petition in equity or under the provisions of this section. Sherman County v. Nichols, 65 Neb. 250, 91 N.W. 198 (1902).

  • Error in rendering decision is not ground for new trial after term. Dillon v. Chicago, K. & N. R. R. Co., 58 Neb. 472, 78 N.W. 927 (1899).

  • This section applies only to judgments and orders possessing some degree of legal validity, and not to such as are absolutely void. Kaufmann v. Drexel, 56 Neb. 229, 76 N.W. 559 (1898).

  • 2. Fraud

  • A party seeking to set aside a judgment after term for fraud under subsection (4)(b) of this section must prove that he or she exercised due diligence at the former trial and was not at fault or negligent in the failure to secure a just decision. Nielsen v. Nielsen, 275 Neb. 810, 749 N.W.2d 485 (2008).

  • Pursuant to subsection (4) of this section, in order to set aside a judgment after term on the ground of fraud practiced by the successful party, the petitioning party must prove that due diligence was exercised by him or her at the former trial and that the failure to secure a just decision was not attributable to his or her fault or negligence. McCarson v. McCarson, 263 Neb. 534, 641 N.W.2d 62 (2002).

  • If a party's lawyer colludes in a material and factual misrepresentation which otherwise constitutes an intentional fraud or deceit and results in a judgment adverse to the interests of the party represented by such collusive lawyer, relief by vacating such fraudulently obtained judgment is available to the injured party under subsection (4) of this section. In re Estate of West, 226 Neb. 813, 415 N.W.2d 769 (1987).

  • In reviewing a trial court's action, under subsection (4) of this section, in vacating or refusing to vacate a judgment or order made in a prior term of court and allegedly obtained through fraud practiced by the successful party, the Supreme Court will uphold the trial court's decision in the absence of an abuse of discretion. In re Estate of West, 226 Neb. 813, 415 N.W.2d 769 (1987).

  • Proceeding authorized by subsection (4) of this section to vacate a judgment is not an equitable cause of action based on fraud, but is a remedy at law conferred by statute. Whether relief is sought by a motion addressed to a court's equity jurisdiction or by a petition based on a statute which supplies a legal remedy, vacating a judgment or order is equitable in nature. In re Estate of West, 226 Neb. 813, 415 N.W.2d 769 (1987).

  • Under subsection (4) of this section, party seeking to vacate judgment in order allegedly obtained through fraud practiced by the successful party must prove: (1) judgment or order has been obtained or produced through fraud; (2) it is inequitable to enforce the judgment or order; (3) failure to secure a just decision is not the result of the vacating party's fault or neglect; and (4) the party seeking to vacate has exercised due diligence in discovering the fraud. In re Estate of West, 226 Neb. 813, 415 N.W.2d 769 (1987).

  • In order to set aside a judgment after term on the ground of fraud practiced by the successful party, as allowed by this section, the petitioning party must prove all diligence was exercised by him or her at the former trial and the failure to secure a just decision was not attributable to his or her fault or negligence. Caddy v. Caddy, 218 Neb. 582, 358 N.W.2d 184 (1984).

  • Demurrer was properly sustained, in an action to vacate a tax foreclosure judgment on ground of fraud, where statute authorized service by publication on a dissolved corporation. County of Madison v. City of Norfolk, 198 Neb. 718, 255 N.W.2d 54 (1977).

  • In order to vacate judgment for fraud or for death of party, action must be brought within required time. McNally v. McNally, 152 Neb. 845, 43 N.W.2d 170 (1950).

  • Where facts alleged to constitute fraud were discovered within two years, action brought more than two years after rendition of decree was barred. Watters v. Harris, 147 Neb. 1081, 26 N.W.2d 182 (1947).

  • Where petition alleges fraud in procuring service by publication and fails to set forth that the facts constituting the fraud were not discovered within two years, equity is powerless to relieve where action was instituted more than two years after order was entered for service by publication. Katz v. Swanson, 147 Neb. 791, 24 N.W.2d 923 (1946).

  • Under subdivision (4), it is only when a judgment is clearly shown to have been obtained by fraud or false testimony, and which it would be against good conscience to enforce, that judgment will be vacated upon application of unsuccessful party upon proper showing of due diligence. County of Lincoln v. Provident Loan & Investment Co., 147 Neb. 169, 22 N.W.2d 609 (1946); Pinches v. Village of Dickens, 131 Neb. 573, 268 N.W. 645 (1936); Kielian v. Kent & Burke Co., 131 Neb. 308, 268 N.W. 79 (1936).

  • Where fraud charged was violation of an oral agreement between attorneys, evidence was sufficient to sustain denying application to vacate judgment. Drake v. Ralston, 137 Neb. 72, 288 N.W. 377 (1939).

  • Where new trial is sought by means of petition filed after term, alleging fraud and perjury in procurement of judgment, party seeking new trial must introduce evidence adduced at the former trial. Weber v. Allen, 121 Neb. 833, 238 N.W. 740 (1931).

  • Attorney's fees are properly taxed on refusal to vacate for fraud judgment for plaintiff on fire policy. Messing v. Dwelling House Mut. Ins. Co., 119 Neb. 36, 226 N.W. 914 (1929).

  • Petition to vacate judgment for fraud after two years is properly stricken, where it shows on face fraud was discovered within two-year period. Brandeen v. Beale, 117 Neb. 291, 220 N.W. 298 (1928).

  • Petition must show fraud was not discovered within two years from rendition of judgment if action commenced later. State ex rel. Nelson v. Lincoln Med. College, 86 Neb. 269, 125 N.W. 517 (1910).

  • Action against receiver for fraud in purchasing claims against estate is not limited by section. State v. Merchants Bank, 81 Neb. 710, 120 N.W. 157 (1909).

  • Courts will relieve against a decree on the ground of fraud committed by the successful party. State v. Omaha Country Club, 78 Neb. 178, 110 N.W. 693 (1907).

  • Intentional production of false testimony is ground, if opponent shows diligence at trial. Secord v. Powers, 61 Neb. 615, 85 N.W. 846 (1901).

  • Fraud must have been practiced in connection with trial of case. Munro v. Callahan, 55 Neb. 75, 75 N.W. 151 (1898).

  • Negligence of counsel is not ground for granting new trial, unless amounting to fraud. Scott v. Wright, 50 Neb. 849, 70 N.W. 396 (1897).

  • Court has general power to set aside divorce decree obtained by fraud. Wisdom v. Wisdom, 24 Neb. 551, 39 N.W. 594 (1888).

  • Taking judgment contrary to oral agreement for continuance is fraud. Mordhorst v. Reynolds, 23 Neb. 485, 37 N.W. 80 (1888).

  • 3. Irregularity

  • This section is concurrent with an independent equity jurisdiction and with a court's inherent powers of equity. A district court has no authority to set aside a judgment after the term when any mistake, inadvertence, or neglect was the party's own. The purpose of subsection (3) of this section is to address mishaps beyond a party's control. A litigant seeking vacation or modification of a judgment after term may take one of two routes: The litigant may proceed either under this section or under the district court's independent equity jurisdiction. With regard to subsection (3) of this section, the operative definition of "irregularity" limits the term to the doing or not doing that, in the conduct of a suit at law, which, conformably with the practice of the court, ought or ought not to be done. A judgment marred by irregularity is one rendered contrary to the course of law and practice of the court. Roemer v. Maly, 248 Neb. 741, 539 N.W.2d 40 (1995).

  • The first part of subsection (3) of this section, providing that a judgment may be vacated "for mistake, neglect, or omission of the clerk," applies only to the actions of the district court clerk; the second part of subsection (3), dealing with "irregularity in obtaining a judgment or order," refers to judgments or orders rendered contrary to the course of law and the practice of the courts. Therefore, relief for errors of law or judicial acts may not be sought under subsection (3). State ex rel. Ward v. Pape, 237 Neb. 283, 465 N.W.2d 760 (1991).

  • Absence of required allegation in petition resulting in default judgment is not irregularity in obtaining decree. Gasper v. Mazur, 157 Neb. 857, 62 N.W.2d 117 (1954).

  • Where findings are made in judgment that are foreign to any pleading and not necessary to relief grantable to any litigant in case, it is an irregularity in obtaining judgment which court has power to modify after expiration of term. Petersen v. Dethlefs, 139 Neb. 572, 298 N.W. 155 (1941).

  • Where order on claim in probate proceedings is entered by judge, it cannot be set aside under subdivision (3). Estate of McKenna v. McCormick, 60 Neb. 595, 83 N.W. 844 (1900).

  • Court may set aside judgment rendered without jurisdiction as irregular. Bankers Life Ins. Co. v. Robbins, 53 Neb. 44, 73 N.W. 269 (1897).

  • Defects in service by publication not rendering service void constitute irregularity. Scarborough v. Myrick, 47 Neb. 794, 66 N.W. 867 (1896).

  • Omission of clerk to journalize judgment when entered does not constitute irregularity in obtaining judgment. Slater v. Skirving, 45 Neb. 594, 63 N.W. 848 (1895).

  • Failure to give notice of appeal and to give notice of application for default judgment did not authorize vacation of judgment on ground of irregularity. McBrien v. Riley, 38 Neb. 561, 57 N.W. 385 (1894).

  • Taking of stay is not a waiver of right to apply for correction of mistake in entry of decree. Hoagland v. Way, 35 Neb. 387, 53 N.W. 207 (1892).

  • 4. Equitable relief

  • To be entitled to vacate a judgment after term by an action in equity, the litigant must show that, without fault or laches on his part, he was prevented from proceeding under this section. Jeffrey B. v. Amy L., 283 Neb. 940, 814 N.W.2d 737 (2012).

  • In order to seek vacation or modification of judgment under the district court's equity jurisdiction, a litigant must show that this section cannot provide adequate relief. Hornig v. Martel Lift Systems, Inc., 258 Neb. 764, 606 N.W.2d 764 (2000).

  • With regard to the invocation of the equity powers of this section, the applicant, to be successful, must first allege and prove that he exercised due diligence and that his failure to secure a proper decision in the prior term was not due to his own fault or negligence. Thrift Mart v. State Farm Fire & Cas. Co., 251 Neb. 448, 558 N.W.2d 531 (1997).

  • A litigant seeking the vacation of a prior decree or judgment after term may either proceed under this section or under the district court's independent equity jurisdiction. Welch v. Welch, 246 Neb. 435, 519 N.W.2d 262 (1994).

  • Equity power conferred by Constitution on district court is ample for granting relief against default judgment attributable to fraud of attorney, notwithstanding limited powers granted by this section. Seward v. Churn Ranch Co., 136 Neb. 804, 287 N.W. 610 (1939).

  • This section does not provide exclusive remedy for vacation of judgment for fraud, but is concurrent with independent equity jurisdiction, which may be exercised by county court. In re Estate of Jensen, 135 Neb. 602, 283 N.W. 196 (1939).

  • Statutory grounds for vacating judgment after term are not exclusive but concurrent with independent equity jurisdiction. Pavlik v. Burns, 134 Neb. 175, 278 N.W. 149 (1938).

  • In action in equity to set aside order dismissing law action, plaintiff must show that, without fault or laches on his part, he was prevented from proceeding under this section to obtain a new trial. Lindstrom v. Nilsson, 133 Neb. 184, 274 N.W. 485 (1937).

  • Provisions of statute are concurrent with equity jurisdiction, and where circumstances call for equitable relief, a decree may be set aside after expiration of term at which rendered. Howard Stove & Furnace Co. v. Rudolf, 128 Neb. 665, 260 N.W. 189 (1935).

  • Statute is not always the measure of equitable relief; general powers of equity court may be invoked to redress wrong resulting from abuse of confidential relation. Hall v. Hall, 123 Neb. 280, 242 N.W. 607 (1932).

  • Statute is not exclusive but declaratory of the equitable power of the court at time of its enactment. Hall v. Hall, 122 Neb. 228, 239 N.W. 825 (1932).

  • Party failing to show reasonable diligence in producing evidence of adverse party's perjury may not have judgment vacated by producing such evidence in equity suit. Gutru v. Johnson, 115 Neb. 309, 212 N.W. 622 (1927).

  • Equity will afford relief against fraudulent judgment where fraud was not discovered in time to proceed to vacate hereunder. Krause v. Long, 109 Neb. 846, 192 N.W. 729 (1923).

  • Where this section is inadequate to prevent sale upon judgment obtained by fraud in county court and transcribed to another county, injunction may be allowed. Spence v. Miner, 90 Neb. 108, 132 N.W. 942 (1911).

  • Remedy under this section for fraud in obtaining judgment is declaratory of equity practice, and concurrent with remedy in equity. Schneider v. Lobingier, 82 Neb. 174, 117 N.W. 473 (1908).

  • In equity, party must show good reason why special remedy of code is not available. Van Antwerp v. Lathrop, 70 Neb. 747, 98 N.W. 35 (1904).

  • Section is declaratory of equity power; substantial injury must be shown. Van Every v. Sanders, 69 Neb. 509, 95 N.W. 870 (1903).

  • Equity will not enjoin if relief is possible under this section. Woodward v. Pike, 43 Neb. 777, 62 N.W. 230 (1895).

  • Petition in equity for new trial must be founded upon some equitable ground, as fraud, accident or mistake. Douglas County v. Connell, 15 Neb. 617, 19 N.W. 591 (1884).

  • 5. Unavoidable casualty

  • This section provides for circumstances which prevent parties from participating in an action by virtue of unavoidable casualty or misfortune; it is not an excuse to disregard court orders. The casualty must be such that it prevents the party from prosecuting or defending. Aetna Cas. & Surety Co. v. Dickinson, 216 Neb. 660, 345 N.W.2d 8 (1984).

  • Lack of diligence or negligence of counsel is not an unavoidable casualty or misfortune. Emry v. American Honda Motor Co., 214 Neb. 435, 334 N.W.2d 786 (1983); Johnston Grain Co. v. Tridle, 175 Neb. 859, 124 N.W.2d 463 (1963).

  • Unavoidable casualty alone does not provide a basis for vacating a judgment after term. That casualty must also be one preventing the party from prosecuting or defending. Emry v. American Honda Motor Co., 214 Neb. 435, 334 N.W.2d 786 (1983).

  • The lack of diligence of a party or his attorney is not an "unavoidable casualty or misfortune" under this section preventing the party from defending an action at a former term of court. Lyman v. Dunn, 125 Neb. 770, 252 N.W. 197 (1934).

  • Unavoidable casualty must be such as prevents from prosecuting or defending in trial court, and is not applicable to appeals. Loss of bill of exceptions by fire is not ground hereunder, but may be in equity. Norfolk Packing Co. v. American Ins. Co., 116 Neb. 118, 216 N.W. 309 (1927).

  • Unavoidable casualty was shown to exist. Poeggler v. Supreme Council of Catholic Mutual Benefit Assn., 102 Neb. 608, 168 N.W. 194 (1918); Hodder v. Olson, 102 Neb. 429, 167 N.W. 575 (1918).

  • Dishonesty of attorney, permitting default judgment, is unavoidable casualty. Anthony & Co. v. Karbach, 64 Neb. 509, 90 N.W. 243 (1902).

  • Lack of knowledge by client of holding of term of court and failure of counsel to attend did not authorize vacation of judgment on ground of unavoidable casualty. Ganzer v. Schiffbauer, 40 Neb. 633, 59 N.W. 98 (1894).

  • Where husband withheld summons from wife, properly left at residence, it was unavoidable casualty. Morse v. Engle, 28 Neb. 534, 44 N.W. 859 (1890).

  • Circumstances must have been entirely beyond control of party, without negligence on his part, to constitute unavoidable casualty. Pope v. Hooper, 6 Neb. 178 (1877).

  • 6. County court jurisdiction

  • This section applies to county courts as well as to district courts, and the fact that the county court rules on a demurrer at a subsequent term is immaterial. In re Estate of Reikofski, 144 Neb. 735, 14 N.W.2d 379 (1944).

  • County court has power to vacate order appointing administrator obtained by fraud. In re Estate of Sheerer, 137 Neb. 374, 289 N.W. 529 (1940).

  • County court cannot vacate judgment in case beyond justice jurisdiction after expiration of monthly term, except under this section; attempt to vacate without notice is void. Stone v. Jensen, 118 Neb. 254, 224 N.W. 284 (1929).

  • Order of county court vacating fraudulent judgment is reviewable by district court on appeal. Gainsforth v. Peterson, 114 Neb. 442, 207 N.W. 935 (1926).

  • Justices and county courts within justice jurisdiction have no power to vacate judgment after expiration of time for appeal. Carlson v. Ray, 104 Neb. 18, 175 N.W. 886 (1919).

  • County court may vacate probate of will procured by fraud and permit contest. In re Estate of Kelly, 103 Neb. 513, 175 N.W. 653 (1919).

  • County court may vacate erroneous judgment against incompetent defendant where condition of such defendant does not appear of record. Spence v. Miner, 90 Neb. 108, 132 N.W. 942 (1911); Spence v. Miner, 89 Neb. 610, 131 N.W. 1044 (1911).

  • Applicable to county court in term cases. Oakdale Heat & Light Co. v. Seymour, 78 Neb. 50, 114 N.W. 643 (1908).

  • County court cannot set aside award in condemnation proceedings procured by fraud. Mattheis v. Fremont, E. & M. V. R. R. Co., 53 Neb. 681, 74 N.W. 30 (1898).

  • 7. Omissions and mistakes

  • A district court may freely correct clerical errors after notice of appeal has been filed up until the time the parties submit the case at the conclusion of arguments. After that time, the district court must obtain leave of the appellate court to fix a clerical error in a prior order. Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d 1 (2008).

  • The failure of the clerk of the court to send notice of a summary judgment is beyond the control of the parties and within the statutory grounds for vacating or modifying an order under subsection (4) of this section. Nye v. Fire Group Partnership, 263 Neb. 735, 642 N.W.2d 149 (2002).

  • The first part of subsection (3) of this section, providing that a judgment may be vacated "for mistake, neglect, or omission of the clerk," applies only to the actions of the district court clerk; the second part of subsection (3), dealing with "irregularity in obtaining a judgment or order," refers to judgments or orders rendered contrary to the course of law and the practice of the courts. Therefore, relief for errors of law or judicial acts may not be sought under subsection (3). State ex rel. Ward v. Pape, 237 Neb. 283, 465 N.W.2d 760 (1991).

  • This section governs the vacation or modification of judgments after the term, and for mistake or omissions by the clerk, proceedings may be commenced within three years. Pofahl v. Pofahl, 196 Neb. 347, 243 N.W.2d 55 (1976).

  • Where clerk omitted to enter proper judgment after first trial, court, on second trial of cause, may correct record to show judgment as it should have shown as result of first trial. Crete Mills v. Stevens, 120 Neb. 794, 235 N.W. 453 (1931).

  • Where, by mistake of clerk in placing case on trial docket after judgment, it was dismissed, latter order was a nullity. Jacoby v. Dvorak, 111 Neb. 683, 197 N.W. 428 (1924).

  • Court has power, where clerk fails to enter judgment, to order judgment entered nunc pro tunc, subject to rights of innocent third parties, who may oppose. Clark & Leonard Inv. Co. v. Rich, 81 Neb. 321, 115 N.W. 1084 (1908).

  • For mistakes of clerk, party must apply to court for correction of record. Tootle-Weakley Millinery Co. v. Billingsley, 74 Neb. 531, 105 N.W. 85 (1905).

  • Entry by probate judge, acting as his own clerk, on records of probate court, was not an act of mistake, neglect or omission of clerk under this section. Estate of McKenna v. McCormick, 60 Neb. 595, 83 N.W. 844 (1900).

  • Neglect and mistakes of clerk as such, not as agent of parties, constitute ground for new trial. Thompson v. Sharp, 17 Neb. 69, 22 N.W. 78 (1885).

  • Subsection (3) of this section, which allows for the correction of clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission by an order nunc pro tunc, does not authorize the district court to correct mistakes or errors made by a party or the party's attorney. Bevard v. Kelly, 15 Neb. App. 960, 739 N.W.2d 243 (2007).

  • The county court may correct clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission by issuing an order nunc pro tunc as provided in subsection (3) of this section. State v. Ziemann, 14 Neb. App. 117, 705 N.W.2d 59 (2005).

  • 8. Other grounds

  • Pursuant to subsection (2) of this section, a district court has inherent authority to vacate or modify a decision within the same term that the decision is rendered. Such decision will be reversed only if it is shown that the district court abused its discretion. Hartman v. Hartman, 265 Neb. 515, 657 N.W.2d 646 (2003).

  • As a general rule, in order to make a sufficient showing for a new trial on the ground of newly discovered evidence, the proof in support thereof must show that such evidence is now available which neither the litigant nor counsel could have discovered by the exercise of reasonable diligence and that the evidence is not merely cumulative but competent, relevant, and material, and of such character as to reasonably justify a belief that its admission would bring about a different result if a new trial were granted. DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (1994).

  • Newly discovered evidence is not grounds for a motion for new trial where the exercise of reasonable diligence would have produced the evidence. A motion for new trial on the basis of newly discovered evidence must allege that the evidence could not have been discovered during term with the exercise of reasonable diligence. Reasonable diligence means appropriate action where there is some reason to awaken inquiry and direct diligence in a channel in which it will be successful. DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (1994).

  • Judgment may be attacked after two years where relief is sought upon the ground of lack of jurisdiction. Thomas v. Flynn, 169 Neb. 458, 100 N.W.2d 37 (1959).

  • Court is not authorized to set aside judgment or order after term because of plaintiff's own mistake, inadvertence or neglect. State ex rel. Spillman v. Commercial State Bank of Omaha, 143 Neb. 490, 10 N.W.2d 268 (1943).

  • One seeking writ of error coram nobis to vacate judgment against him on ground that he was of unsound mind must begin proceedings within two years after disability is removed. Newcomb v. State, 129 Neb. 69, 261 N.W. 348 (1935).

  • In compensation case, decree may be modified any time after six months on ground of decrease or increase of disability. Metropolitan Dining Room v. Jensen, 126 Neb. 765, 254 N.W. 405 (1934).

  • Failure to appoint guardian ad litem in partition suit is erroneous, and appropriate remedy is by a proceeding in error, not by proceeding to vacate judgment hereunder. Schleuning v. Tatro, 122 Neb. 3, 238 N.W. 741 (1931).

  • Conditions for granting a new trial upon newly discovered evidence stated. Smith v. Goodman, 100 Neb. 284, 159 N.W. 418 (1916).

  • Court of equity will grant new trial where party is deprived of bill of exceptions by failure of reporter to furnish in time. Ferber v. Leise, 97 Neb. 795, 151 N.W. 307 (1915).

  • Minor must institute action to vacate decree within two years after becoming of age. Kiplinger v. Joslyn, 93 Neb. 40, 139 N.W. 1019 (1913).

  • New trial may be granted for perjury of successful party. Wirth v. Weigand, 85 Neb. 115, 122 N.W. 714 (1909).

  • Interlocutory order may be vacated at subsequent term without compliance with this section. Godfrey v. Cunningham, 77 Neb. 462, 109 N.W. 765 (1906).

  • Section is not applicable to matters arising subsequent to judgment depriving party of review. Ritchey v. Seeley, 73 Neb. 164, 102 N.W. 256 (1905).

  • Provisions of code in regard to vacation of judgments and granting of new trials is not exclusive. Meyers v. Smith, 59 Neb. 30, 80 N.W. 273 (1899).

  • If record shows defendant is infant, remedy is by error. Manfull v. Graham, 55 Neb. 645, 76 N.W. 19 (1898).

  • Petition to set aside judgment must allege one or more of the statutory grounds for granting new trial. Kirkham v. Gibson, 52 Neb. 23, 71 N.W. 960 (1897).

  • Court has power to correct record to conform to facts. Wachsmuth v. Orient Ins. Co., 49 Neb. 590, 68 N.W. 935 (1896).

  • Court has power to correct decree to conform to pleadings; stay of execution is not waiver of right to correction. Hoagland v. Way, 35 Neb. 387, 53 N.W. 207 (1892).

  • Court may correct record to conform to judgment actually rendered. Brownlee v. Davidson, 28 Neb. 785, 45 N.W. 51 (1890).

  • Section applies to voidable but not void judgments. Baldwin v. Burt, 2 Neb. Unof. 377, 2 Neb. Unof. 383, 96 N.W. 401 (1902).

  • 9. Miscellaneous

  • The time for exercise of the trial court’s inherent power to vacate its judgment as extended by subsection (1) had expired where the complaint to vacate was filed 20 months after dismissal of the action. Carlson v. Allianz Versicherungs-AG, 287 Neb. 628, 844 N.W.2d 264 (2014).

  • The trial court lacked jurisdiction to vacate its judgment under subsection (4) of this section, because the complaint to vacate was not properly served under the Hague Convention. Carlson v. Allianz Versicherungs-AG, 287 Neb. 628, 844 N.W.2d 264 (2014).

  • The question of whether a paternity decree should be set aside must be determined under section 43-1412.01, applicable to setting aside a judgment of paternity, and not under the provisions of this section, applicable to vacating judgments in general. Jeffrey B. v. Amy L., 283 Neb. 940, 814 N.W.2d 737 (2012).

  • Pursuant to subsection (3) of this section, "pendency" refers to the period of time after notice of appeal has been filed but before the parties have submitted the case at argument. Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d 1 (2008).

  • "Submitted for decision" refers to the period after the case was submitted at oral argument but before appellate court's opinion has issued. Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d 1 (2008).

  • An appellate court will reverse a decision on a motion to vacate or modify a judgment under the statutory grounds listed in this section only if the litigant shows that the district court abused its discretion. Nye v. Fire Group Partnership, 263 Neb. 735, 642 N.W.2d 149 (2002).

  • As a discretionary matter, the determination of whether a default judgment should be set aside after term will, on appeal, be presumed to have been made in proper exercise of that discretion where the contrary does not appear from the record. Diplomat Inn, Inc. v. Weindorf, 206 Neb. 565, 293 N.W.2d 861 (1980).

  • Where defendant not properly served, had no knowledge of his attorney's withdrawal, and had a meritorious defense, the district court may properly vacate its default judgment. Tietsort v. Ranne, 200 Neb. 651, 264 N.W.2d 860 (1978).

  • This section does not provide the district court power to vacate a judgment after term on claim of error of law. Paine v. United States Nat. Bank of Omaha, 199 Neb. 248, 257 N.W.2d 826 (1977).

  • 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).

  • Costs may be retaxed at subsequent term when court has failed to follow a mandatory statutory duty to tax costs, in event of clerical error, failure to perform a ministerial act, and in instances authorized by this section for vacation or modification of judgments at a subsequent term. Muff v. Mahloch Farms Co., Inc., 186 Neb. 151, 181 N.W.2d 258 (1970).

  • This section is cited as illustration of the meaning of the term "final judgment." Kometcher v. Wade, 177 Neb. 299, 128 N.W.2d 781 (1964).

  • Power to modify judgment ends with adjournment of term. Meier v. Nelsen, 156 Neb. 666, 57 N.W.2d 273 (1953).

  • Failure to institute proceedings to set aside tax foreclosure did not bar easement. Jurgensen v. Ainscow, 155 Neb. 701, 53 N.W.2d 196 (1952).

  • Remedy under this section is concurrent with exercise of independent equity jurisdiction. Shinn v. Shinn, 148 Neb. 832, 29 N.W.2d 629 (1947).

  • Order at subsequent term directing that all parties be placed in status quo was unauthorized where judicial sale had not been vacated, although confirmation had been set aside at same term. Enquist v. Enquist, 146 Neb. 708, 21 N.W.2d 404 (1946).

  • Where court found that petition to modify decree did not state facts sufficient to grant relief, it was error to re-enter decree with additional findings therein. Hallgren v. Williams, 146 Neb. 525, 20 N.W.2d 499 (1945).

  • Procedure for vacation of judgments does not apply to municipal courts. State Furniture Co. v. Abrams, 146 Neb. 342, 19 N.W.2d 627 (1945).

  • An order, fixing a time for the filing of petitions in intervention by a claimant whose claim has been classified as invalid by the receiver of an insolvent bank, is not a judgment within the meaning of this article. State ex rel. Sorensen v. South Omaha State Bank, 135 Neb. 478, 282 N.W. 382 (1938).

  • Court which rendered judgment alone can vacate regardless of residence of parties. Rasmussen v. Rasmussen, 131 Neb. 724, 269 N.W. 818 (1936); Trimble & Blackman v. Corey & Son, 78 Neb. 639, 111 N.W. 376 (1907).

  • Statute authorizing new trial in civil actions at subsequent term on ground of newly discovered evidence is not available in criminal case. Carlsen v. State, 129 Neb. 84, 261 N.W. 339 (1935).

  • In mortgage foreclosure, petition to set aside decree after term of court at which it was rendered cannot be maintained after sale under decree on ground of error in computation of interest where parties knew or should have known of error and, after knowledge of error, took a stay of order of sale. Federal Land Bank of Omaha v. Arthur, 124 Neb. 496, 247 N.W. 17 (1933).

  • Evidence was not sufficient to sustain grounds to vacate or modify judgment hereunder. Citizens Bank of Ogallala v. Lister, 123 Neb. 386, 242 N.W. 926 (1932).

  • Judge at chambers is without jurisdiction to modify or correct judgment except by consent. Nicholson v. Getchell, 113 Neb. 248, 202 N.W. 618 (1925); Kime v. Fenner, 54 Neb. 476, 74 N.W. 869 (1898).

  • Statutory time to bring proceedings hereunder is not applicable to orders nunc pro tunc. Calloway v. Doty, 108 Neb. 319, 188 N.W. 104 (1922).

  • Statements by third party that action had been settled did not constitute ground for vacating default. Kulhanek v. Kulhanek, 106 Neb. 595, 184 N.W. 139 (1921).

  • New trial was denied where issue was disputed on whether court promised extension of time in which to settle bill of exceptions. Ferber v. Leise, 101 Neb. 374, 163 N.W. 317 (1917).

  • Requires service of summons or voluntary appearance and due proof. Wunrath v. Peoples Furniture & Carpet Co., 98 Neb. 342, 152 N.W. 736 (1915).

  • Error in computation of interest in decree cannot be remedied hereunder. Girard Trust Co. v. Null, 97 Neb. 324, 149 N.W. 809 (1914).

  • General statement that petitioner has meritorious action or defense is sufficient in absence of attack by motion or demurrer. Wagener v. Whitmore, 79 Neb. 558, 113 N.W. 238 (1907).

  • Party must show due diligence at former trial. Citizens Ins. Co. v. Herpolsheimer Imp. Co., 78 Neb. 707, 111 N.W. 606 (1907).

  • Court cannot vacate judgment upon void service. McCormick Harv. Machine Co. v. Stires, 68 Neb. 432, 94 N.W. 629 (1903).

  • Motion to vacate until acted upon has no effect on decree. Omaha Loan & Trust Co. v. Walenz, 64 Neb. 89, 89 N.W. 623 (1902).

  • Where proceeding is brought under this section, ruling thereon is res judicata in subsequent suit to enjoin enforcement of judgment. Slater v. Skirving, 51 Neb. 108, 70 N.W. 493 (1897).

  • Court should not set aside judgment until it first ascertains that applicant has valid cause of action or defense. Western Assur. Co. of Toronto v. Klein, 48 Neb. 904, 67 N.W. 873 (1896).

  • Affidavit for attachment must be filed before notice is served. State ex rel. Austrian, Wise & Co. v. Duncan, 37 Neb. 631, 56 N.W. 214 (1893).

  • Remedy afforded by this section is not a new action, but proceeding in original action. Morse & Co. v. Engle, 26 Neb. 247, 41 N.W. 1098 (1889).

  • Under this section, a nunc pro tunc matter is not submitted for decision in the appellate court until after the hearing. State v. Ziemann, 14 Neb. App. 117, 705 N.W.2d 59 (2005).

  • The plain language of this section limits the operation of subsection (3) to nunc pro tunc orders as they existed under prior case law; that is, a nunc pro tunc order operates to correct a clerical error or a scrivener's error, not to change or revise a judgment or order, or set aside a judgment actually rendered, or to render an order different from the one actually rendered, even if such order was not the order intended. In re Interest of Antone C. et al., 12 Neb. App. 466, 677 N.W.2d 190 (2004).

  • A court may modify or vacate a judgment after the term has expired under any of the nine reasons set out in this statute or under the court's independent equity jurisdiction. Portland v. Portland, 5 Neb. App. 364, 558 N.W.2d 605 (1997).