3 Neb. 108 | Neb. | 1873
On the first day of March, 1872, Major C. Long executed and delivered to the defendant in error a promissory note for the sum of twenty-five hundred dollars payable in one year from the date thereof, with interest from maturity at the rate of twelve per cent per annuo^ and to secure the payment thereof, Long, and wife executed and delivered to the defendant in error, a mortgage on the east half of lot twelve in block twenty-four, in that part of Ashland, known as Elora City. The mortgage was duly recorded on the eighth day of March, 1872. On the thirty-first day of October, 1872, Long and wife conveyed the premises, subject to the mortgage, to Edward B. Woodbury. On the eighteenth of March, 1873, Woodbury conveyed the premises to plaintiff in error. Suit to foreclose the mortgage was commenced in the district court of Saunders county on the first day of April, 1873. Major C. Long, Caroline Long, and the plaintiff in error were made defendants. Summons was issued and served on the defendants. On the 24th of April, 1873, the defendant filed the following motion:
“ And now comes the defendants by Seth Robinson, their attorney, and appearing specially for this motion, and not for any other purpose, and move the court here to order that the petition in this cause be struck from the files, on the ground that the affidavit of verification of said petition is insufficient and defective in this, to-wit: that said affidavit is made by the attorney for the said plaintiff, whereas it should have been made by the defendant himself; that no sufficient reason is shown in said affidavit, why the same is not made by the said plaintiff, or why the same is made by plaintiff’s attorney.”
State of Nebraska., ] Saunders county, j '
T. B. Wilson being sworn says, he is one of the attorneys of the above named E. A. Wiggenhorn, the plaintiff herein, duly authorized in the premises, that the above pleading of E. A. Wiggenhorn, is founded upon a written instrument, for the payment of money only, and is now in the possession of this affiant, and that the facts and allegations in the foregoing pleading of E. A. Wiggenhorn are true as affiant believes.
T. B. Wilson.
At the May term, 1873, of the district court in Saunders county, after argument, the court overruled the motion, to which defendants excepted. A judgment was rendered for the amount claimed in the petition, and for the sale of the mortgaged premises to satisfy the same. ■
A petition in error is now filed in this court by Cropsey, one of the defendants in the court below, to reverse that judgment. The errors assigned are:
“ First. That the summons in said action, served upon the said Andrew J. Cropsey, the plaintiff in error, was endorsed as follows to-wit: “amount claimed of the defendants by the plaintiff is $2500.00, and interest from March 1, 1873, at 12 per cent,” whereas the action was for the foreclosure and sale of mortgaged premises, and not for the recovery of money only.
Second. That the summons served upon the said Andrew J. Cropsey, was endorsed with the amount claimed to be due, as in actions for the recovery of money only, whereas said action was for the foreclosure of a mortgage upon real estate.
Third. The said court erred in overruling the motion of the defendant in the court below, to strike the petition of the plaintiff from the files.
Fifth. The court erred in rendering judgment against the said Andrew J. Oropsey, the plaintiff in error, for the amount found due on the note and mortgage described in the petition of the plaintiff in the court below.
Sixth. That judgment was given for "Wiggenhom when it ought to have been for plaintiff in error.”
Section 120 of the code provides, that when the affidavit is made by the agent or attorney it must set forth the reason why it is not made by the party himself. It can be made by the agent or attorney, only:
First. "Where the facts are within the personal knowledge of the agent or attorney. .
Second. "Where the plaintiff is an infant or of unsound mind.
Third. WRere the pleading to be verified is founded upon a written instrument for the payment of money only, and such instrument is in possession of the agent or attorney.
Fourth. Where the party is not a resident of, or is absent from the county. General Statutes, 543.
In the case of Smith v. Rosenthal 11 Howard Pr., 442, tho court held, “ that an affidavit of verification of a complaint on a promissory note, made by the attorney of the plaintiff, stating in addition to what*is required in an affidavit of verification of the party, that he is such attorney, and that he has in his possession the note on which the action is brought, is a sufficient verification. Treadwell v. Fasset, 10 Howard Pr., 184. Wheeler v. Chasley, 14 Abbott, 441.
But it is contended by the attorney for the plaintiff in
Under the code “ the distinction between actions at law, and suits in equity, and the form of all such actions and suits heretofore existing, are abolished, and in their place shall be but one form of action to be called a civil action.” General Statutes, 524.
This abrogation of the forms of pleading, and the adoption of a uniform system of remedies in the courts, does not abolish the distinction between law and equity in the determination of causes, nor require that every cause of action shall be set forth in the same manner. Many cases occur in which courts of law and equity entertain concurrent jurisdiction. Judge Story, says: “the concurrent jurisdiction, then of equity, has its true origin in one of two sources; either the courts of law, although they have general jurisdiction in the matter, cannot give adequate, specific and prefect relief, or under the actual circumstances of the case they cannot give any relief at all. The former occurs in all cases where a simpie judgment, for the plaintiff or for the defendant, does not meet the full merits and exigencies of the case, but a variety of adjustments, limitations, and cross claims are to be introduced, and finally acted on, and a decree, meeting all the circumstances of the particular case between the various parties, is indispensible to complete distributive justice.” Story’s Equity Jurisprudence, Sec. 76.
Section 429 of the code of civil procedure provides, that “judgment may be given for or against one or more of several defendants; it may determine the ultimate rights of the parties on either side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled.” General Statutes, 596.
This section, derived from the practice of courts of equity, is also applicable, in many cases, in actions at law, and relief may be obtained under the code, in all cases
In this case we are asked to hold, that an attorney holding an instrument for the payment of money, where relief is sought in equity, cannot verify the pleading. We cannot give so narrow a construction to the code, and must hold, that in all cases an agent or attorney having in his possession, as such agent or attorney, such instrument for the payment of money, may verify a pleading, where such instrument constitutes the substantive cause of action, and this is true whether the relief is sought at law or in equity.
The question now' arises, whether the appearance of the defendants in the court below was general or special. In the case of Porter v. The Chicago and Worthwestern R. R. Co., 1 Neb., 14, the court held “ that a defendant may appear specially to object to the jurisdiction of the court either over his person or the subject matter of the suit, but if by motion, or other form of application to the court, he seek to bring its powers into action, except on the question of jurisdiction, he will be deemed to have appeared generally.” In Johnson v. Jones, 2 Web., 136, the court held, “ that the jurisdiction of the court attached to the defendant, when he is legally served with summons, without regard to the defects contained in the petition.”
The cases cited are decisive in this case, and we must hold, that the appearance of the defendants in the court below was a general appearance.
No objections were made to the summons in the court
No motion for a new trial, or to vacate or modify the decree, seems to have been made in the court below. In the case of The Midland Pacific Rail Road Co. v. McCartney, 1 Neb., 404, the court quoted approvingly the language of Judge Stewart in the case of The State v. Swartz, 9 Indiana, 221. “ It is due to the lower court that its errors, .if any, be pointed out there, so that it may retrace its steps while the record is yet under its control.” And in the ease of Mills v. Miller, 2 Neb., 317, the court says : “ Before a party is entitled to be heard here he must have exhausted his remedy in the court below. Eor that purpose he must have presented the several questions of law fairly and fully, and must have obtained an unequivocal ruling thereon. If dissatisfied with the ruling of the court, he may have an exception.” Vide Preston v. Wells, Fargo & Co., Appendix.
This case is brought here on error. It is the duty of a party who feels himself aggrieved by a judgment of the district court, in all cases brought here on error, to tate the necessary steps by motion, in such court, to set aside, vacate, or modify the judgment, distinctly setting forth the errors complained of, and excepting to such ruling on the motion as he may be dissatisfied with; he may then bring the matter here for review on his exceptions.
Judgment aeeiemed.
