73 Neb. 257 | Neb. | 1905
This is a proceeding in error to reverse the judgment of the district court for Douglas county in entering a deficiency judgment against plaintiffs in error, who were defendants in the court below, in a proceeding to foreclose a real estate mortgage. The mortgage was made and executed September 1, 1890, to secure an indebtedness maturing within' five years. When the principal debt matured it was extended by a written agreement for a further period of five years, or until September 1, 1900.
Two questions are presented: First, that as the time of the payment of the indebtedness under the extension agreement did not mature until after the repeal of the act known as the deficiency judgment law, the court was without jurisdiction to enter a deficiency judgment. This question was carefully examined by this court in the case of Burrows v. Vanderbergh, 69 Neb. 43, and we there held, that the act of 1897 (Laws, 1897, ch. 95), did not affect the right to a deficiency judgment — an effective part of the remedy — in a foreclosure proceeding on a real estate mortgage executed before the passage of this act.
The next question urged is that the court erred in overruling the demand of plaintiffs in error for a trial by jury on the question of their liability for a deficiency judgment. The determination of this question depends on the nature of the action at its inception. If purely equitable the-right of trial by jury did not exist; if legal in its nature at its inception, although equitable defenses might be interposed, the right of a trial by jury would still remain. Schumacher v. Crane-Churchill Co., 66 Neb. 440. But where the action as originally instituted seeks equitable relief alone, the interposition of a legal defense does not secure
We therefore recommend that the judgment of the district court be affirmed.
By the Court: Eor the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.