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claims under the judgment, and for other defect inheres in the judgment itself, it can equitable relief.

[1] An action to set aside a judgment must be brought in the court which rendered the judgment, otherwise the records of one court would be under the control of other courts of co-ordinate jurisdiction. A judgment is a matter of record, and can only be changed, set aside or modified by the court by whose authority the record is made, or by the direction of a court of higher jurisdiction in proceedings to review the judgment. If this were not so, chaos would result. Ryan v. Donley, 69 Neb. 623, 630, 96 N. W. 234; Trimble & Blackman v. Corey & Son, 78 Neb. 639, 111 N. W. 376; Carlson v. Ray, 104 Neb. 18, 175 N. W. 886.

[2] In a few cases in this state where objections were not raised, such decrees have been rendered, but these cases are not authority for such a practice. Bankers' Life Ins. Co. v. Robbins, 53 Neb. 44, 73 N. W. 269; Security Mutual Ins. Co. v. Ress, 76 Neb. 141, 106 N. W. 1037.

only be done in the court which rendered the judgment. If the judgment should be vacated in that court, then a suit to quiet the title against the apparent lien can be maintained in Sheridan county.

Respondent has cited many cases to the effect that a court of equity may set aside judgments for fraud. In only one case cited has the transcript of a judgment been set aside in another court. That is the case of Carlson v. Ray, 104 Neb. 18, 175 N. W. 886, and the only ground for so doing was that there is no power in a county court acting as a justice of the peace to vacate its own judgment for fraud. The opinion recognizes the general rule to be as above stated, upon substantially the same grounds.

[3] But another kind and form of relief is prayed for. An injunction against the enforcement of the judgment is sought against the holders thereof. This is an action in personam and is transitory in its nature. Such a suit requires jurisdiction of the person, either by proper service, or by appear

. The transcript of a judgment is in the same plight. Section 7996, Rev. St. 1913, pro-ance. In the event the Krauses are successvides:

"Such transcript shall at all times be affected and be in the same plight as the original judgment."

We have held that a motion to revive a transcripted judgment of the district court must be made in the court where the judgment was rendered, and it is said:

or.

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ful, the record of the judgment in Douglas county will be unaffected by the decree, but, the parties defendant will be restrained from enforcing it.

It is a maxim that equity acts in personam. Even though property is beyond the reach of the process of the court, and it can therefore exert no power or control over it, it may by a decree against a person over whom it has acquired jurisdiction enforce action or nonaction with respect to such property. It may compel specific performance of a contract to convey lands lying in another state, and it may restrain proceedings in the courts of other states or countries.

"The Nebraska statute upon which plaintiff relies authorizes an execution, but not a reviv* It leaves the court of original jurisdiction in complete control of its own judgment. That court has power to renew the lien, to cancel it for any lawful reason, to make orders respecting parties, to direct satisfaction in case of payment, and to perform "Where the necessary parties are before a any other judicial act essential to the rights court of equity, it is immaterial that the res of any party to the suit. Orders made in the of the controversy, whether it be real or perexercise of such power affect transcripts in oth-sonal property, is beyond the territorial juriser jurisdictions in the manner described in the proviso to section 429A of the Code. The jurisdiction of the court to which the judgment is transferred is not the same as that of the court rendering the judgment, unless made so by statute." Case Threshing Machine Co. v. Admisten, 85 Neb. 272, 122 N. W. 891.

The prayer to quiet the title to lands is based upon the fact that the transcript is on file in Sheridan county. A judgment in Douglas county is not a lien on lands in Sheridan county unless a transcript of the same is on file in that county. The transcript is based upon and is only an incident to the judgment. The title cannot be quieted against the cloud created by a transcript without setting it aside. Where the defect is in the transcript itself for instance, if it fails to be a true exemplification of the record, or for any other reason not concerned with the judgment itself this may be done by an action in the

diction of the tribunal. It has the power to compel the defendant to do all things necessary, according to the lex loci rei sitæ, which he could do voluntarily, to give full effect to the decree against him." Phelps v. McDonald, 99 U. S. 298, 25 L. Ed. 473.

In Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. 62, 35 L. Ed. 870, cited by respondent, it is said speaking of the power of the court in a similar action:

"While it cannot require the state court itself to set aside or vacate the judgments in question, it may, as between the parties before it, if the facts justify such relief, adjudge that Mayer shall not enjoy the inequitable advantage obtained by his judgments. A decree to and would not contravene that provision of that effect would operate directly upon him, the statute prohibiting a court of the United States from granting a writ of injunction to stay proceedings in a state court. It would simply take from him the benefit of judgments

(196 N.W.)

[4] The objections made by defendants to the jurisdiction of the district court for Sheridan county are upon the grounds that none of the defendants were served with summons in the action, or found in Sheridan county, or reside therein, and that none of them appear in the action except for the purpose of excepting to the jurisdiction of the court over the subject-matter of the action, and the persons of each and all of the defendants.

[5] Being a transitory action, the court has jurisdiction over the subject-matter and may exercise the same whenever it has obtained jurisdiction over the persons of the defend

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in its power and jurisdiction, but it has no direct power to vacate the judgment or set aside the transcript until the judgment is disposed of. Nothing hereinbefore said is to be construed as expressing any opinion as to the issues of law or fact involved in the pending case in the district court for Sheridan county.

Writ denied.

SIMPSON v. OMAHA & C. B. ST. RY. CO. (No. 21675.)

(Supreme Court of Nebraska. Feb. 16, 1922.)

(Syllabus by the Court.)

1. Release 16-Mutual mistake, to avoid, must relate to present or past facts, and not to opinion as to future results of known facts..

To avoid a written release of damages for personal injuries on ground of mutual mistake of the parties, the mistake must relate to a present or past fact or facts that are material to the contract of settlement, and not to an opinion as to the future conditions as to results of present known facts. 2. Release

16-Mistake as to future development of known injury is one of opinion, and not of fact.

This decision has been followed in Brainard & Chamberlain v. Butler, Ryan & Co., 77 Neb. 515, 109 N. W. 766; Summit Lumber Co. v. Cornell-Yale Co., 85 Neb. 468, 123 N. W. 444; Lillie v. Modern Woodmen, 89 Neb. 1, 130 N. W. 1001; Clark v. Bankers' Accident Ins. Co., 96 Neb. 381, 147 N. W. 1118; Legan v. Smith, 98 Neb. 7, 151 N. W. 955; Parkhurst v. Nevins, 106 Neb.'- 182 3. Release 16-Held not to bar action for

N. W. 563.

The defendants not having confined their appearance to challenging the jurisdiction of the court over their persons, but having challenged the jurisdiction of the court over the subject-matter, and the challenge not being well founded with respect to the prayer for restraining the collection of the judgment, submitted themselves to the jurisdiction of the court for its judgment upon that question, and thus made a general appearance as to that part of the action in which the court had jurisdiction of the subject-matter.

A court of equity, when it has obtained jurisdiction of the persons, has full power to render full and adequate relief through them, even to the enforcement of action looking toward the satisfaction or cancellation of any paper fraudulently obtained or executed, or the satisfaction of judgments wrongfully obtained. Jefferson v. Gregory, 113 Va. 61, 73 S. E. 452; Barnesley v. Powell, 1 Ves. Sr. (Eng.) 284; Loss v. Obry, 22 N. J. Eq. 52; Fall v. Fall, 75 Neb. 120, 106 N. W. 412, 113 N. W. 175, 121 Am. St. Rep. 767; Story, Equity Jurisprudence (13th Ed.) §§ 899, 900; Cole v. Cunningham, 133 U. S. 107, 10 Sup. Ct. 269, 33 L. Ed. 538.

A mistake as to the future development of a known injury is one of opinion, and not a mistake as to fact.

injuries unknown to either party.

Where one who has sustained personal injuries and with his attention directed to the the settlement of his damages with reference known injuries, which are trivial, contracts for thereto, in ignorance of other and more serious injuries, both parties believing that the known injuries are the only ones sustained, then there is a mutual mistake, and a release executed under such mistake, although couched in general terms, will not bar an action for the more serious and unknown injuries.

(Additional Syllabus by Editorial Staff.). 4. Release 58 (5)-Whether there was mutual mistake may be submitted to the jury.

In an action against a street railway for personal injuries, whether there was a mutual mistake in execution of a release need not be decided by the court, and it was not error to submit it to the jury.

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Appeal from District Court, Douglas CounThe court having acquired jurisdiction, has ty; Goss, Judge. power to enjoin the enforcement of the judg- Action by Eugene D. Simpson, by Catherment, and afford other adequate relief with- ine Simpson, his next friend, against the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Omaha & Council Bluffs Street Railway | ties, and the settlement and release had refCompany, for personal injuries. Judgment erence to those only, and that the injuries for plaintiff, and defendant appeals. Af firmed.

John L. Webster and William M. Burton. both of Omaha, for appellant.

Magney & Magney, of Omaha, for appellee. Heard before LETTON, DEAN, DAY, and ALDRICH, JJ., and GOOD, District Judge.

GOOD, District Judge. This is an appeal by the defendant from the district court for Douglas county, in an action wherein plaintiff recovered a judgment for $12,000, for personal injuries sustained while he was attempting to board one of defendant's street cars at the intersection of Sixteenth and Farnam streets in the city of Omaha, on the 4th day of February, 1918.

Plaintiff alleged that while in the act of boarding the car as a passenger, and when he had one foot on the step of the car and one hand grasping the handrail, the car was negligently suddenly started, and threw him to the pavement on his hands, knees and stomach, and that in consequence he sustained a severe shock to his nervous system, causing a nervous breakdown, melancholia, permanent mental impairment, and that he thereby became mentally incompetent and practically insane.

for which he now seeks recovery had not then manifested themselves, and that said release was executed under a mutual mistake as to the nature and extent of the injuries, and that the release was never intended to cover any other injuries than those known at the time of signing the release, and mentioned therein, and no claims or causes of action were intended to be barred except those growing out of the then known injuries, and further alleges that no release from damages for the injuries from which he is now suffering, and for which he seeks a recovery in this action, has ever been executed, and that said release is therefore not a bar to this action.

Appellant argues that the evidence is insufficient to show that there was any mutual mistake at the time of making the settlement and execution of the release. There is no conflict on the evidence on this point, but the question is as to the deductions to be made therefrom and the legal effect thereof. The record discloses that appellee, who was a traveling salesman, and who was at the time of the accident on his way to St. Louis, continued his journey and went about his business as usual; that at the time of the accident he sustained a lacerated or skinned knee, a bruised hand and torn trousers; that for a few days he was stiff and lame. Appellee returned to Omaha in a few days, and notified appellant's claim agent that he had received an injury and damage to his clothing, and disclosed the nature and extent of his injuries, as he then supposed they were. Appellee continued his work as a saleman, and on March 18, 1918, some six weeks after the accident, he called on appellant's claim agent and asked for a settlement. At that time he believed, and stated, that he was all right, and had fully recovered. The only personal injuries then known to either party were the skinned knee, bruised hand, and shock incident thereto. These were the only ones discussed. The claim agent saw noth

Defendant denied that plaintiff received any severe injury; denied any negligence; alleged that plaintiff's ailment and condition from which he was suffering was due to causes other than the accident; and, in addition, set up a release, signed by the plaintiff on the 18th day of March, 1918, wherein and whereby the plaintiff, for a consideration of $50, then paid, released the defendant"from any and all cause or causes of action, costs, charges, claim or demand, of whatever name or nature, in any manner arising or to grow out of an accident occurring Monday, February 4, 1918, at Sixteenth and Farnam in the city of Omaha, Douglas county, Nebraska, whereby I received and sustained personal injury and damage to my clothing while boarding ing to indicate that appellee was not fully the rear end of an east-bound Farnam line recovered. There was no talk of other possiclosed motor car, and falling to the pavement." ble unknown injuries, or of any future un

[1] Plaintiff in his reply admits the execution of the release, and the receipt of the $50, and alleges that at the time of its execution the only injuries of which he knew, or by the exercise of reasonable diligence could have known, consisted of a superficial injury to his knee, and the damage to his clothing, consisting of a tear across the knee of his trousers, and that the sum of $50 was a fair and adequate compensation for the damages he had sustained up to that time; that it was the intention of both parties to the settlement to fairly compensate plaintiff for all his injuries, but these injuries above re

favorable conditions that might arise from the known injuries. The claim agent asked appellee what he thought he should receive to recompense him for the shock and suffering and the torn clothing, and appellee answered that he thought he ought to receive $50, and this amount was paid him, and the release executed. It was several weeks thereafter before appellee became aware that he had sustained other injuries than those known and talked of at the time of the settlement. He first noticed that he could not make out his statements and accounts, became confused and forgetful, and grew worse, and became emotional and depressed, and

(186 N.W.)

shows that at the time of the trial, in April, I release is one of equitable cognizance, and 1920, appellee was mentally incompetent and should have been submitted to and determinwithout hope of recovery. The jury founded by the court, in advance of the jury trial, the fall from the car was the cause of his present condition. Are these facts sufficient in the eyes of the law to constitute a mutual mistake?

and that it was error to submit that question to the jury. The rule as contended for prevails in many jurisdictions, but the contrary practice has obtained in this jurisdiction, and [2, 3] There seems to be a very great con- has met the approval of this court in a numfusion in the opinions of the various courts ber of cases. Osborne v. Missouri P. R. Co., as to what is required to avoid a release for 71 Neb. 180, 98 N. W. 685; New Omaha personal injuries on the ground of mutual Thompson-Houston Electric Light Co. V. mistake. What we believe to be the true rule | Rombold, 68 Neb. 54, 93 N. W. 966, 97 N. W. is that the mistake must relate to either a 1030; Perry v. Omaha Electric Light & Powpresent or past fact or facts that are materi-er Co., 99 Neb. 730, 157 N. W. 921.

Regardless of what the practice may be, we are unable to perceive that appellant was in any way prejudiced by the submission of the question to the jury. The court, in overruling the motion for new trial and entering judgment on the verdict, thereby approved the finding of the jury on that question, and made it the court's own, as much as if it had predetermined the question.

al to the contract of settlement, and not to an opinion as to future conditions as the result of present known facts. A mistake as to the future development of a known injury is a matter of opinion, and is not one of fact, and is not such a mistake as will avoid a release; but, where the mistake is as to the extent of the injury due to unknown conditions or relates to injuries that were wholly unknown, then the release may be avoided, un- [5] It is strenuously urged that the verdict less it further appears that the parties were is not supported by the evidence, in that it contracting with respect to possible unknown does not show that appellee's present physiinjuries, and the releasor intended to relin- cal and mental condition was caused by the quish all claims, whether known or unknown. fall from the street car. We have carefully In the latter case there would be no mutual examined the record, and while this court, mistake. Where one who has sustained per- had it been the trier of fact, might have sonal injuries, and with his attention direct-reached a different finding, yet we find ample ed to the known injuries, which are trivial in their nature, contracts for the settlement of his damages with reference thereto, in ignorance of other and more serious injuries, both parties at the time believing that the known injuries are all the injuries sustained, then there is a mutual mistake, and the release, although couched in general terms, should be held not to be a bar to an action for the more serious and unknown injuries. The views herein expressed find support in the following authorities: 23 R. C. L. 390, § 20; McIsaac v. MeMurray, 77 N. H. 466, 93 Atl. 115, L. R. A. 1916B, 769, and note thereto, wherein many THAMANN v. MERRITT et al. (No. 21808.) authorities are collected; Dominicis v. United

evidence to support the verdict in that respect, and we cannot say, as a matter of law, that the verdict is wrong. Under the oft-repeated rule laid down by this court, we decline to interfere with a verdict that is supported by evidence, and is not clearly wrong.

There are other assignments of error not discussed in the brief, and we omit consideration of them. We find no prejudicial error in the record. The judgment of the district

court is affirmed.

States Casualty Co., 132 App. Div. 553, 116 N. (Supreme Court of Nebraska. Feb. 16, 1922.)

Y. Supp. 975; Shook v. Illinois, C. R. Co., 115
Fed. 57, 52 C. C. A. 651; Great N. R. Co. v.
Fowler, 136 Fed. 118, 69 C. C. A. 106; Gold
Hunter Mining & Smelting Co. v. Bowden,
252 Fed. 388, 164 C. C. A. 312; Reddington v.
Blue & Raftery, 168 Iowa, 34, 149 N. W. 933;
Owens v. Norwood-White Coal Co., 188 Iowa,
1092, 174 N. W. 851; 34 Cyc. 1058.

The record in this case fully justified the conclusion that the release was executed under a mutual mistake of the parties, and does not therefore bar plaintiff from recovery of damages for the injuries that were unknown to both parties at the time the release

was executed.

[4] Appellant insists that whether there was a mutual mistake in the execution of the

(Syllabus by the Court.)

1. Evidence 596(2)—In action for damages from unlawful sale of intoxicating liquors, preponderance of evidence is sufficient.

In an action for damages resulting from an unlawful sale of intoxicating liquors, a preponderance of the evidence will sustain a recovery in favor of plaintiff, though the wrongful act may be punishable in a criminal court. 2. Intoxicating liquors 310-In action for damages, unlawful sale and defendant's connection therewith may be proved by circumstantial evidence.

and defendant's connection therewith may be An unlawful sale of intoxicating liquors proved by circumstantial evidence alone, and proof that the consideration for the sale passed may be unnecessary.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

3. Intoxicating liquors 310-In damage ac- | al. plaintiff appeals. Reversed and remandtion, unlawful sale may be proved withouted for further proceedings. evidence of contract terms.

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Murphy & Winters, of South Omaha, for appellant.

Isador Ziegler and Ray J. Abbott, both of Omaha, for appellees.

Heard before MORRISSEY, C. J., ALDRICH, FLANSBURG and ROSE, JJ., and FITZGERALD and WAKELEY, District Judges.

ROSE, J. This is an action to recover from defendants damages in the sum of $10,

5. Trial 142 Inferences from evidential facts are for the jury where evidence will sustain verdict for plaintiff. Inferences from evidential facts are ques-000 for contributing to the death of John tions for the jury, where the evidence will sustain a verdict in favor of plaintiff.

6. Trial 178-Where defendant adduces no

proof, all facts which plaintiff's evidence tends to prove will be treated as prima facie established.

Thamann by unlawful sales of intoxicating liquors labeled "Essence of Wintergreen," a preparation containing 95 per cent. of alcohol-more than necessary for legitimate purposes-not containing drugs in sufficient quantities to make it unfit for use as a beverage and not being salable by defendant under any other exception to the statutory provisions forbidding the sale of intoxicating liquors. Laws 1917, c. 187. Plaintiffs are the widow and the minor children of deced7. Evidence 194-In action for damages for ent. It is alleged that the sales were made death from wrongful sale of intoxicating liq- by defendant Sherman-McConnell Drug Comuors, empty bottles and labels from defend-pany, a corporation conducting drug stores ant's drug store held admissible.

Where defendant does not adduce any proof, all facts which the evidence on behalf of plaintiff tends to prove will be treated as established for the purposes of a prima facie case in plain

tiff's favor.

In an action to recover damages for the wrongful act of defendant in selling intoxicating liquors, empty bottles and the labels thereon, having come from drug stores conducted by defendant, held admissible as circumstantial evidence of a sale, under the circumstances outlined in the opinion.

8. Intoxicating liquors 310-There may be

circumstances under which plaintiff may recover without proof that person fatally injured was himself a purchaser.

In an action to recover damages for the wrongful act of defendant in selling intoxicating liquors there may be circumstances under which plaintiff may recover without proof that the person fatally injured was himself the purchaser.

at various places in Omaha under state licenses, and that defendant Charles R. Sherman is a bondsman of the seller. The conducting of drug stores in Omaha under statę licenses and the suretyship of Sherman are admitted in an answer denying the wrongful acts imputed to defendants. After the proofs on behalf of plaintiffs had been ad

duced, the trial court directed a verdict in favor of defendants, the latter not having offered any evidence. From a judgment of dismissal, plaintiffs have appealed.

The only questions presented are raised by assignments that the trial court erred in sustaining objections to the introduction in evidence of empty bottles with the labels thereon and in directing a verdict in favor of defendants. To justify the peremptory instruction, it is argued that there is no proof that Sherman-McConnell Drug ComWhere the unlawful sale of intoxicating liq-pany sold the intoxicating liquors consumed uor contributes to the death of the person who consumed it, there may be a recovery for resulting damages without proof that the wrongful act was the proximate cause of such death.

9. Intoxicating liquors 291-There may be recovery for damages although wrongful act was not proximate cause of death.

by Thamann, and that the empty bottles and

an

the labels are not evidence of that factessential element of plaintiffs' case. These questions must be considered in the Appeal from District Court, Douglas Coun- light of the following pertinent rules of law: ty; Goss, Judge.

Action by Eva Thamann, individually and as next friend of Geneva Thamann and other minors, children of said Eva Thamann, against John Merritt, and others, for damages for contributing to the death of John Thamann. Directed verdict in favor of the defendants, and from a judgment of dismiss

[1] In an action for damages resulting from an unlawful sale of intoxicating liquors, a preponderance of the evidence will sustain a recovery in favor of plaintiff, though the wrongful act may be punishable in a criminal court.

[2] An unlawful sale of intoxicating liquors and defendant's connection therewith may be proved by circumstantial evidence

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