dissenting.
This is a proceeding under subdivisions three and $ve of section six hundred and two of the code, to set aside the judgment and default, and permit the defendants to answer the petition.
*188That a great wrong has been committed against the defendants in this case there is no question. The original indebtedness was $3,200, for which five notes secured by mortgage were given, payable in one, two, three, four, and five years, with interest at twelve per cent per an-, num, the interest being added into each note. The notes were dated March 12, 1874. A decree of foreclosure was rendered in October, 1875, for the entire amount of the notes, principal and interest, amounting to about the sum of $4,500. While in my opinion the defendants are entitled to relief on other grounds, I will only discuss the question of estoppel.
The judgment of a court of general jurisdiction directly upon the point in issue is, as a plea in bar, or as evidence, conclusive between the same parties; but the judgment is conclusive only in the matter which was d/i/reotly in issue in the former trial. Such a judgment is not evidence of any matter which came collaterally in question, although within the jurisdiction of the court. The matter in issue is that upon which the plaintiff predicates his action and which the defendant controverts by his answer. The decree in this case was for $100 more than the amount claimed in the petition, and embraced one hundred and fifty acres of laud not included in the petition. These errors could scarcely have been the result of mistake, yet we are told that the decree is final and conclusive unless fraud is shown.
The rule is well settled that a plaintiff cannot have other or greater relief than the case made by his pleading will warrant, and the decree must conform to the prayer and cannot exceed it.
In Huntington & McIntyre v. Finch & Co., 3 Ohio State, 448, it was held that a judgment may be vacated or set aside on motion, at a term subsequent to .the judgment term, for irregularity or improper conduct in procuring it to be entered.
*189In the case of the Bank v. Doty, 9 Ohio State, 505, judgment was rendered against the defendants in September, 1865. At the same term L., one of the defendants, filed a motion to set aside the judgment. The hearing oh the motion was continued until the second term thereafter, when the motion, by leave of court, was amended by making one T. a party thereto, and assigning five reasons for setting the judgment aside. The motion was sustained. The court say: “ Such a motion prior to, as well as since the code, might be made at the term in which such judgment was rendered, of at a subsequent term.” In that case L. & T., the moving parties, had paid the judgment before it was set aside. The court held that in order to make it a voluntary payment there must be a concurrence of both volition and knowledge. If paid voluntarily, but in ignorance of the facts affecting its validity, or if the payment was not voluntary, though the party paying was aware of the facts rendering it invalid, such payment did not preclude the judgment debtor from questioning its validity. In Abernathy v. Latimore, 19 Ohio, 288, the court held, that errors of fact are corrected by the court where committed. That court has the power, and upon proper showing should set aside or vacate a judgment effected thereby, on motion, and let the defendant in to defend.
In Horn v. Queen, 4 Neb., 113, it was held that equity will only grant a new trial in cases of newly discovered evidence, surprise, fraud, or the like, where the party is deprived of the means of defense by circumstances be, yond his control. In that case the plaintiff was sued before a justice of the peace, and a copy of the summons left at his residence during his absence. On the day of the trial he returned home, but, as alleged in the petition, “too ill to give the matter any attention, which .illness continued for more than ten days.” On demurrer to the petition it was held that a new trial should be granted, as the justice court could give no relief.
*190The rule laid down in the opinion of the majority of the court in this case is doubtless correct so far as it applies to cases where a defendant has answered 'and a trial has taken place on the pleadings and proof. But a different rule prevails where a decree is irregularly-taken by default.
In an action of foreclosure it is not necessary to endorse the amount claimed on the’ summons. Watson v. McCartney, 1 Neb., 131. But the defendant need not appear in the action if the petition trathfully sets forth the cause of action. He may rely upon the court to see that a decree is rendered conformably to the petition: The journal entries are usually prepared by attorneys, who, being officei’S of the court, are amenable to it for the proper discharge of their duty. If a mistake is made in any respect the court certainly has the right to correct it at a subsequent term. Suppose a decree is taken on the last day of the term against a party in default for an amount greater than the facts stated vn the petition will wa/rrant, and the court immediately thereafter adjourns, is the defendant bound by such a decree unless an appeal is taken? Or, may he not apply to the same court at a subsequent term to correct the error? I think he may.
A decree for too large a sum, or embracing matters not in controversy, cannot be considered the deliberate judgment of, the court. And when there has been an irregulai’ity in taking the judgment, or fraud, imposition, or mistake in obtaining the same, the j udgment should be set aside. And the proper remedy in such cases is by motion, as the errors frequently do not appear in the record, and therefore cannot be reviewed on error.
Here the decree was rendered for a sum not warranted by the facts set forth in the petition, and without an appearance on the part of the defendants. It is true that an attorney afterwards took a stay of the order of sale, and *191although, this may be an appearance in the case, so far as the husband is concerned, it cannot be considered as waiving the right of the defendants to the full time to answer. The entry of satisfaction of the decree on the journal of the court by the attorney for the plaintiff' certainly did not bind the defendants nor conclude them.
In this case it is sought to set aside the judgment and default, and allow the defendants to answer the petition of the plaintiff. The district court in furtherance of justice has found that they should be set aside and the defendants be permitted to answer, and I think that the court did not err therein. The wife at least has never appeared in the action, and the fifth subdivision of section six hundred and two of the code expressly provides that a married woman shall be entitled to the benefit of this section.
It is contended that as the statute has changed the common law rule in this state by permitting a married woman to sue and be sued, that therefore this section has no application. It is a sufficient answer to say that the law does not favor a repeal by implication, and that if the two sections are not inconsistent with each other they will be permited to stand; and that is the rule laid down by this court in The People v. Weston, 3 Neb., 323. White v. The City of Lincoln, 5 Neb., 614.
But the husband has made no such appearance as precludes him from seeking to set aside the judgment, and a settlement made by him in ignorance of the real facts im, the case does not, and ought not to prevent him from availing himself of the defense that the decree was taken for too large an amount, and that it included land not embraced in the petition. As to the latter, in all probability the decree is a nullity, but a party in such a case has a right to have the cloud created thereby removed.
As to the objection made by this court to the form of proceeding, it is sufficient to say that although .verified *192like a petition and in that form, yet it brings the irregularity before the court, and as no objection has been made by the parties on that ground it is not the business of the court to do so. Turner v. Althaus, ante page 54. The great object of the law is to administer justice, and although it must be administered according to the rules of law it must not be sacrificed for mere forms. In this case it is evident that great injustice has been done and that the district court has applied the proper corrective. The judgment should be affirmed.
Decree for Plaintiff in error.