71 Neb. 236 | Neb. | 1904
This is a proceeding in error prosecuted from a judgment of the district court for Fillmore county, denying
It is contended by plaintiff that, because in the decree of foreclosure an amount was found due to the plaintiff from the defendant, and an order entered that, unless defendant made payment within 20 days, an order of sale should issue, this amounted to a final judgment against, defendant, fixing his liability for the deficiency, and that defendant could not, at a subsequent time, be permitted again to defend. We are unable to accept this view. The finding and decree of foreclosure did not amount to a personal judgment against the defendant. Alling v. Nelson, 55 Neb. 161. The mortgage was not barred by tins statute, and plaintiff was entitled to a decree of foreclosure; but, before a deficiency judgment could have been rendered, the court must have found from the evidence that defendant Avas liable on the notes in suit, and, as it was disclosed by the pleadings and the evidence that the notes were barred, plaintiff Avas not entitled to a deficiency
A second and equally valid reason is disclosed by the record why the judgment must be affirmed. On June 30, 1903, the cause seems to have been before the district court upon the motion of plaintiff for a deficiency judgment and the pleadings in the case, and judgment was entered against plaintiff dismissing his application for a deficiency judgment. Plaintiff Avas given 40 days within Avhieli to prepare and settle a bill of exceptions containing the evidence heard by the trial court, and Ave find this bill of exceptions in the record; but no motion for a neAv trial Avas ever filed in the case or ruled on by the trial court, and this would seem to preclude plaintiff from obtaining any relief in this court, even had the action of the trial court been erroneous, AAdiich clearly it is not.
It is therefore recommended that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.