97 Neb. 229 | Neb. | 1914
This plaintiff obtained a deficiency judgment against the defendant in the circuit court of the United States for this district in June, 1897, and in July, 1911, he brought this action upon that judgment in the district court for Douglas county. He alleged in his petition the foreclosure of the mortgage and sale of the property and the deficiency judgment. The defendant answered, admitting the judgment as pleaded, and alleged the statute of limitations, and that no permission had been given by the court in which the judgment was rendered to bring an action thereon. No reply was filed, and upon plaintiff’s motion the court entered a judgment in his favor upon the pleadings. The defendant has appealed.
These pleadings show that more than 14 years had elapsed after the entry of the judgment before'the commencement of this action, and the allegation that no permission had been given by the court to bring an action upon thé judgment not being denied, the question is also presented as to whether such permission is necessary.
1. Upon the first proposil.on the plaintiff relied upon Snell v. Rue, 72 Neb. 571, in which it was held: “The provisions of sections 10 and 16 of the code, known as the statute of limitations, do not apply to actions upon domestic judgments.” The defendant attacks that decision as unsound. He points out that it is predicated largely upon Tyler’s Ex’rs v. Winslow, 15 Ohio St. 364, and says
It is not entirely clear why the legislature should limit actions upon foreign judgments to five years, and limit proceedings to revive dormant domestic judgments to 10
2. Section 8257, ReV. St. 1913, provides: “After such petition (for the foreclosure of a real estate mortgage) shall be filed, while the same is pending, and after a decree rendered thereon, no proceedings whatever shall be had at law for the recovery of the debt secured by the mortgage, or any part thereof, unless authorized by the court.” We have seen that it is conceded that no such permission was granted by the court by which this deficiency judgment was rendered. It is insisted by the defendant that this permission is necessary after a deficiency judgment is rendered, as well as while the proceedings for foreclosure are pending, but in this we think that the defendant is wrong. A decree of foreclosure of the mortgage becomes a final decree when the sale thereon is confirmed, so that the statute contemplates two decrees, and the words in the statute, “after a decree is rendered thereon,” must be construed to mean the decree of foreclosure, rendered
3. It appears that the plaintiff applied to the United States court to revive the deficiency judgment, but after-wards dismissed that application, and it cannot therefore affect the question presented here.
The judgment of the district court is in harmony with the views above expressed, and is therefore
Affirmed.