
    F. W. Fitch, appellant, v. Euclid Martin, Administrator, appellee.
    Filed November 9, 1907.
    No. 15,211.
    Trial: Fraud: Dismissal. Fraud or imposition upon the court and against defendant, practiced by a plaintiff during the progress of the trial of his cause, does not justify the dismissal of his action without a determination of its merits.
    Appeal from the district court for Douglas county: Willis G-. Sears, Judge.
    
      Judgment of dismissal vacated and cause remanded with directions. ■
    
    
      A. 8. Churchill and Byron C. Burbank, for appellant.
    
      F. H. Caines and F. C. McCilion, contra.
    
   Ames, C.

This is an appeal to the district court from a judgment of a county court disallowing a claim against thé estate of a deceased person. After the trial had proceeded so far that the cause had been submitted to the jury for deliberation upon their verdict, the claimant or plaintiff was accused of having secretly and fraudulently made a material alteration in an alleged book of accounts of transactions between himself and the deceased, after it had been offered and received as documentary evidence in the progress of the trial. The trial judge thereupon, with the aid of a committee of lawyers appointed by himself, made an investigation into the subject of the charge, as a result of which he became convinced, and made a determination or finding, that the accusation was true. In consequence of such finding, and of his own motion, as the record recites, the judge discharged the jury from further consideration of the case and entered a judgment dismissing the appeal. A motion to vacate the dismissal and for a new trial having been overruled, the plaintiff appealed to this court. ■ -

The constitution of this state contains the three following provisions: Article I, sec. 13. “All courts shall be open, and every person, for any injury done him in his lands, goods, person, or reputation, shall have a remedy by due course of law, and justice administered without delay.”

Article I, sec. 24. “The right to be heard in all civil cases in the court of last-resort, by appeal, error, or otherwise, shall not be denied.”

Article VI, sec. 17. “Appeals to the district courts from the judgments of county courts shall be allowed in all criminal cases on application of the defendant; and in all civil cases, on application of either party, and in such other cases as may be provided by the law.”

It is noAvhere provided that the rights thus guaranteed shall be forfeited by deceit or imposition practiced upon the court, or attempted so to be, or even by the commission of forgery, perjury or other criminal offense. Such penalties as the statute does or shall provide for any such acts must, Ave suppose, be inflicted, if at all, after trial and conviction by due course and process of laAV, and not as the result of a summary investigation in a proceeding unknoAvn to the statute and instituted by the judge upon his OAvn motion. The proceeding and judgment are attempted to be justified in this instance as being an exercise of the inherent poAvers of the court to protect itself from the consequences of deceit and imposition, and to prevent its ordinary process and proceedings from being made use of as the instruments of fraud or oppression. It is unnecessary to attempt to decide, at present, what are the nature and limitations of the powers of the court in this respect, but avo think it is safe to say that they do not extend so far as entirely and finally tp deprive a litigant of the right to have his suit heard, tried and determined according to the usual course and practice of the courts in similar cases. ■

Counsel cite but one decision in support of their contention, viz., Gage County v. King Bridge Co., 58 Neb. 827. But we think that decision is not conclusive, or, indeed, in point, in the present controversy. The appeal, which was dismissed in that case, was from an order of a county board allowing a claim against their county. Now, a taxpayer has no natural or constitutional right to prosecute such an appeal, which concerns a matter in which he has no special individual or personal interest, but the statute permits him to carry on the proceeding in the name and behalf and as a representative of the public, that is to say, of the whole body of the county. And when, in the case cited, the court discovered that the appellants were not in fact doing what the statute contemplated, and that they wore not in reality prosecuting the appeal in the interests of or as representatives of the public, but for the accomplishment of unlawful and extortionate ends of their own, it refused to permit them to proceed further. By so doing the court bereft the appellants of no right or property, but at the uttermost deprived them of a privilege which has been conferred upon them, not for their own end alone, but for the public benefit, from which end they had perverted it.

The cases cited in Gage County v. King Bridge Co., supra, appear to us to be in point neither in that case nor in this. The appeal in Johnson v. St. Paul City R. Co., 68 Minn. 408, Avas dismissed because it Avas without merit, that is to say, because the judgment sought to be appealed from was entered in obedience to a mandate from the supreme court and Avas consequently not subject to revicAv. The court properly described the appeal as frivolous. In Stewart v. Butler, 59 N. Y. Supp. 573, the New York su-' preme court at special term, that is to say, a trial judge, entered an order staying a suit at law under such circumstances, as the opinion recites, as would have justified or probably induced a court of equity perpetually to enjoin the prosecution of a multiplicity of vexatious suits at law. What afterwards became of this case we do not know, nor have we an accurate knoAvledge of the poAvers or jurisdiction of the New York courts or of their methods of procedure, but it is evident that there was exerted in that case a power or jurisdiction quite different in both its nature and origin from that exercised by either of the Nebraska courts in the cases under consideration. We think none of the cases mentioned is a precedent for the order of dismissal in the case at bar, which we think to be also without justification by principle. We, of course, intend to intimate no opinion with respect to the truth or falsehood of the accusation against the plaintiff.

Much of the briefs and oral arguments of counsel was concerned with, orders made by the trial judge with reference to the withdrawal and amendment of pleadings. These orders are, however, interlocutory, and subject -to vacation or modification during the future progress of the cause. Whether they, or any of them, are erroneous, we do not think it necessary or prudent to express an opinion until there shall have been presented a record containing a judgment within the jurisdiction of the district court to render. Even error thus committed may be cured by other steps in the procedure, and may finally turn out to be without prejudice.

We recommend that the judgment of dismissal be vacated and set aside, and the cause remanded, with instructions to reinstate the cause and proceed with it according to law.

Calkins, C., concurs.

Fawcett, C., not sitting.

By the Court: For the reasons stated in the foregoing opinion, the judgment of dismissal is vacated and set aside, and the cause remanded, with instructions to reinstate the cause and proceed with it according to law.

Judgment accordingly.  