93 Neb. 726 | Neb. | 1913
Plaintiff began a suit in 1909 to cancel a mortgage on a number of lots in Crete, on the ground that enforcement of the lien had been barred by the statute of limitations. The mortgage was given to secure a note for $2,780, dated May 17, 1888, and payable May 17, 1890. Guy L. Abbott and Elizabeth Abbott were mortgagors, and Johnston, Eoss & Stevens were mortgagees. Plaintiff asserted title to the mortgaged lots through mortgagors, and undertook to sue the heirs and legal representatives of a purchaser of the mortgage. Plaintiff did not plead payment or offer to pay the debt. His action was dismissed for want of equity. In a cross-petition it was pleaded that a suit, to foreclose the mortgage bad been instituted March 17, 1893, and that it had been wrongfully dismissed and stricken
1. Was the district court without jurisdiction to reinstate the dismissed foreclosure suit? The term at which the dismissal was entered had long since passed, and cross-petitioners did not seek redress under section 602 of the code, enumerating grounds under which judgments may be set aside after expiration of the term at which they were rendered. The code, however, does not provide the exclusive remedy. Its provisions are concurrent with independent equity jurisdiction. Spence v. Miner, 90 Neb. 108; Hitchcock County v. Cole, 87 Neb. 43; Wirth v. Weigand, 85 Neb. 115; State v. Merchants Bank, 81 Neb. 704; Williams v. Miles, 73 Neb. 193; Sherman County v. Nichols. 65 Neb. 250; Meyers v. Smith, 59 Neb. 30; Munro v. Callahan, 55 Neb. 75; Radzuweit v. Watkins, 53 Neb. 412; MacCall v. Looney, 4 Neb. (Unof.) 715; Edney v. Baum, 2 Neb. (Unof.) 173. Under the cross-petition in equity to wliich plaintiff appeared, the trial court, therefore, had jurisdiction. It folloAvs that the first ground of demurrer Avas not Avell taken.
2. Do the facts pleaded by cross-petitioners state grounds for equitable relief? The pleading is long and complicated, but the folloAving, in substance, appear among the alleged facts: The mortgage wras duly executed, delivered and recorded. No action at Iuav to recoArer the debt, Avhich is due and unpaid, has been commenced. Mortgagees assigned the paper to the State Bank of Crete, November 22, 1888, and afterAvard the receiver of that bank sold it to John R. Johnston, Avho died March 12, 1908. His heirs and legal representatives are the cross-petitioners. When
Is the petition demurrable? Are facts entitling cross-petitioners to relief pleaded? The circumstances under which the foreclosure suit was dismissed without notice appeal strongly to a court of equity. Upon default in payment of the debt, the proper action was promptly commenced in the usual manner. There is nothing to. show that it was ever set down for trial, or that a hearing was ever postponed by the lienors. For anything appearing in the pleadings, mortgagors may have caused the delay. It is admitted by demurrer that they had not paid their debt. The record contains nothing to show that there is any valid defense to the original suit. The present owner of the incumbered lots began an action to cancel the lien without alleging that the debt had been paid or that he was willing to pay any part of it. His only ground of relief was the statute of limitations, which could be available only through the advantage obtained by the dismissal procured without notice under the circumstances already outlined. The precautions Avliich a plaintiff ordinarily takes to protect his rights had been taken. The trustee had engaged an attorney to prosecute the suit. The trustee and the beneficiary moved away and the attorney died while the action was pending. Though it is the duty of a plaintiff to be diligent in asserting his rights and in observing what is done in the litigation, the legislature has recognized the justice of granting relief from a judgment obtained without, actual notice. Provision has been made by statute for opening a judgment within five years, where, after published notice only, it was rendered against a party having no knowledge or actual notice.
Failure to give notice is clearly an irregularity apparent on the face of the record. The order was not a dismissal entered by the court on its own motion. Mortgagors were the moving parties. According to the petition, the court, was not advised of the circumstances which accounted for the delay in prosecution. When the apparent irregularity described is considered with the death of the attorney, with the absence of both the real plaintiff and Iris trustee, and with other facts mentioned, relief in some forum should be granted under the liberal practice permitting reinstatement of cases dismissed through laches of attorneys or misunderstanding of parties, where no consideration has passed. Steinkamp v. Gaebel, 1 Neb. (Unof.) 480. Should that relief be granted in this case upon proof of the facts pleaded? The alleged owner of the land brought the owners of the mortgage into a court of equity for the purpose of canceling the apparent, lien. The court of equity had jurisdiction of the subject-matter and of the parties, and should retain it for the purpose of determining the question presented by cross-petitioners. For these reasons, the cross-petition is not demurrable.
The judgment is therefore reversed a.nd the cause remanded for further proceedings.
Reversed.