In 1900 tlie plaintiff commenced an action to foreclose a mortgage made by Ella F. Tebbetts and Charles E. Tebbetts, at that time wife and husband. The mortgage secured a note made by the parties for $1,300, and covered certain lots in the city of Beatrice, Gage county, Nebraska. Charles E. Tebbetts, the defendant in this action, was residing at Kansas City, аnd substituted service of sum
Charles E. Tebbetts made no appearance in the action, except to object to the jurisdiction of the court over his person upon the service first made on him. This motion was sustained, after which a second service was had upon the defendant, and, no appearance being made by or for him, he was then defaulted. In February, 1901, the case was tried. The court found that there was due upon the note to secure which the mortgage wаs given the sum of $1,455.98; that Ella F. Tebbetts was a married woman at the time of the execution of the note and mortgage, and that she was not liable thereon except to the extent of the mortgaged property described in the petition; that, after the mortgaged property had been exhausted and the proceeds applied in payment of the note and mortgage, “the said Ella F. Tebbetts will not be liable to the plaintiff for any deficiency judgment.” There was a further finding that the decree draw interest at the ratе of IQ per cent, per annum. A foreclosure of the mortgage was decreed, an order of sale issued, the mortgaged property duly advertised and sold to the plaintiff herein for $740. December 17, 1901, the sale was duly confirmed by the court, and a finding made that there was a deficiency of $884.23. May 2, 1902, the plaintiff applied for and obtained leavе of court to bring an action at law against Charles E. Tebbetts for the deficiency arising in the foreclosure proceedings, and this action for that purpose was cоmmenced in October, 1903. To a petition reciting the above facts the defendant filed an answer which is too lengthy to be incorporated in this opinion. From a judgment in favоr of the plaintiff, the defendant has appealed.
Tbe second objection urged to the judgment is that it is excessive. It is familiar law that a court has no jurisdiction to enter a personal judgment against a nonresident of this state whо has not appeared in tbe action, and where substituted service of tbe summons has been bad. In tbe foreclosure case tbe court had no jurisdiction to enter a personal judgment against Charles E. Tebbetts, and did not attempt to do so. On confirming tbe sale made under tbe foreclosure decree, tbe court found tbe amount of tbe deficiency existing to be $884.23, and on tbe trial of this case tbe district court apparently took the view that this finding was conclusive upon tbe defendant, and would not allow him to show that in tbе foreclosure proceedings an erroneous computation of tbe amount due upon tbe notes secured by tbe mortgage was made, and that the deficienсy was not so great as found by tbe court. In tbe foreclosure proceedings the court bad undoubted jurisdiction to ascertain the amount due upon tbe mortgage, to deсlare it a lien upon tbe mortgaged premises, and to order a sale for the satisfaction of the amount due. It is conceded that in that action the court was without рower or jurisdiction to enter a personal judgment against tbe defendant, and thé question now
Relating to the claim that plaintiff in the fоreclosure proceedings should have used diligence to establish the primary liability of Mrs. Tebbetts for the mortgaged debt, there is no evidence in the record that the plаintiff fraudulently confederated with Mrs. Tebbetts to obtain a decree relieving her of personal liability, and it is well settled that, while the general rule prevails that a discharge оf a principal releases the surety, an exception to the rule is found where a person guarantees the obligation or becomes surety for a married woman, minor, or other person incapable of contracting. In such case, while the principal is discharged on account of his incapacity, the debt remains and its burdеn must be assumed by the surety. Jones v. Crosthwaite,
For the error in holding that the defendant was estopped from questioning the amount of the deficiency in the forеclosure proceeding, and refusing to allow Mm to show that the amount claimed was in excess of that owing by him, we recommend a reversal of the judgment and remanding the cause for a second trial.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for a second trial.
Reversed.