55 Neb. 103 | Neb. | 1898
In the petition filed in this action, commenced for Ernest Boise in the district court of Seward county, it was pleaded that on February 27, 1889, he executed and delivered to John Kautter a promissory note in the sum of $1,188.36, payable April 1, 1894, and he and Jiis wife, as security for the payment of the note, at the same time executed and delivered to the said party a mortgage on certain land in Seward county, Nebraska; that thereafter the note was by the payee indorsed and transferred to the German National Bank of Lincoln; that the petitioner paid at various dates the sums of interest due on the note, and on May 3,1894, paid to the bank the whole amount of principal and interest then due and received from it the note and mortgage, the note marked paid with a stamp then in use by the bank for cancellation of paid instruments of indebtedness; that the pleader had offered and tendered payment of the fees and expenses, of the execution, etc., of a release of the mortgage, but had been by the bank and other parties apparently interested in the matter refused the satisfaction or release. He impleaded with the bank John Kautter, Henry Schwake, George F. H. Schwake, George T. Meier, and Frank A. Boehmer, as each having or asserting an interest in 'the note and mortgage as assignee, purchaser, or pledgee
For Kautter an answer was filed, and subsequently an answer and cross-petition. His first answer was during the course of the proceedings, on motion of some of the parties to the action, stricken' from the files. In the answer and cross-petition Kautter both admitted and pleaded affirmatively the execution, etc., of the note and mortgage referred to in the petition; also admitted that the mortgage was unreleased of record. It was further pleaded in such cross.-petition that the note and mortgage were by Kautter delivered to the bank as collateral security for the payment of his indebtedness thereto. This was for moneys loaned to him at different times, in the aggregate $238. That at some date in the month of March or April, 1891, he gave to the bank a promissory note for the total sum of the loans, due three months after date, and the bank retained the collaterals, and, soon after, he went to the state of Kansas to attend to some business; that he was not again at the bank until June, 1893, at which time he asked to settle his indebtedness and that he receive the Boise note and mortgage and the bank account for the interest, if any, collected thereon. (The interest on the Boise note was payable annually.) He was then informed by the bank that the Boise note and mortgage had been sold and the proceeds of the sale applied in payment of the indebtedness — the $238. He further pleaded that on or about December 9,1891, the bank made a pretended sale and transfer of the note and mortgage; that the same was done with the intent to cheat and defraud him and to wrongfully and fraudulently de
To the extent the rights, of Ernest Boise, the original plaintiff, were involved, the issues were tried and determined and the cause was continued. Time was asked by and allowed to the bank and others, against whom the cross-petition declared and demanded affirmative relief, to answer its allegations. The bank, in answer to the cross-petition, admitted the creation and existence of the note and mortgage by Boise in favor of the cross-petitioner and alleged that the latter, on March 16,1890, executed and delivered to the bank a promissory note in the sum of $240.75, due June 16, 1890, which was not paid at.
For the cross-petitioner there Avas filed a reply to the answer of the bank, in which it was stated that the bank and the other parties, who, during the life of the $1,138.36 note, became apparently its owners and holders, and who were either officers or employes of the bank or were of its stockholders, combined or planned to cheat or defraud the cross-petitioner and used the suit by attachment as a means through which to effect the purpose, and thereby procured a sale of the note and mortgage to be made, at which a purchase thereof was effected for the bank for
A jury was waived and there was a trial of the issues to the court. The court determined as matters of fact that Kautter borrowed of the bank the sum of $240.75 on March 16, 1890, and as evidence of the indebtedness so created executed and delivered to it a promissory note, also turned' over to it the $1,138.36 note and mortgage as collateral security for the payment of his debt; that several sums at different times were paid by Ernest Boise to the bank on the mortgage note, and the balance due thereof, $1,224, was paid May 3, 1894, to the bank; that' at the time of the suit and attachment and the pretended sale of the note and mortgage under order of the court in such suit “The said cross-petitioner, John Kautter, was an actual bona fide resident of Seward county, Nebraska, and still resides therein, and that he had no notice whatever of the pendency of said action, and that no notice or summons was served upon him in said action; and the court further finds that said pretended action and attachment, and the pretended sale of said note, was collusive and fraudulent and was-made for the purpose of cheating and defrauding said cross-petitioner, John Kautter, out of said note and mortgage.”
Judgment was rendered against the bank and George F. H. Schwake for $1,198.66 and costs, to reverse which is the purpose of the present proceeding in this court.
We deem it proper here to notice some of the facts in connection with the findings of the court relative thereto. There was ample evidence of the fact that the note and mortgage were in the possession of the bank as collateral
It. is contended for the plaintiffs in error that the demand for relief by the cross-petitioner involves a col
The circumstances of this case as to the question now under consideration bring it. within the principle of the rule announced by this court in Eayrs v. Nason, 54 Neb. 143, wherein it was stated: “1. Though the record in which a judgment is pronounced discloses upon its face that the court had jurisdiction both of the subject-matter of the suit and of the parties thereto, still, a party made liable by such a judgment, who has never appeared in the action, and who was never given legal notice of the pendency of such action, may, in a proper proceeding, either as a cause of action or defense, show that the recitals of the record that he was served with the process of the court are false. 2. Suit was brought to foreclose a real estate mortgage, the owner of the equity of redemption of the land involved made defendant thereto, and constructive service had on him by publication, he being at the time a resident of the state and actually present therein. He did not appear in the action personally or by attorney. After the decree the defendant died. Held, that in a suit brought by his heir against the purchaser of the land at the sale under the foreclosure decree, to quiet the heir’s title and redeem from the mort
The ground for the issuance of the writ had no existence and the attachment was wrongful (Stiff v. Fisher, 22 S. W. Rep. [Tex.] 577; McLaughlin v. Davis, 14 Kan. 168; Connelly v. Woods, 31 Kan. 359; Mayer v. Zingre, 18 Neb. 458), and aiforded no forceful defense for the bank against Kautter’s demand for his collaterals or the value thereof.
It is urged that the cross-petition was insufficient and the relief afforded was not warranted or supported by the pleading of the prayer thereof. The cross-petition was not the subject of an attack for insufficiency of allegations until at the time of the trial. The question was raised by a demurrer ore tenus. It was also of the subject-matter of the motion for a new trial. The cross-petition, we think, was sufficient in its allegation to warrant the relief given, especially construed favorably as is the rule when the demurrer is delayed, as was this, until the inception of the introduction of evidence. There are some other points made in argument for plaintiffs in error which refer to the admission of evidence. The trial was to the court without a jury. That improper evidence was admitted , is not in and of itself ground for reversal. There was evidence to sustain the findings of the court. (Tolerton v. McClure, 45 Neb. 368.)
It is also asserted that the tidal court erred in allowing a designated line of interrogatories to be asked of two of the witnesses during their cross-examination. There were but few objections interposed to any portions of the cross-examination to which this complaint refers, and the
It is argued that it was error to allow F. 0. Thomas and Frank Thomas to testify on rebuttal in regard to the place of residence of John Kautter. Of this argument it may be-said that Frank Thomas was not called and did not testify in rebuttal. When F. 0. Thomas was called to testify in rebuttal, there was no objection that it would be improper that he should give testimony at that stage of the trial, nor was his testimony objected to as a whole. Of a few questions asked of him it was made of record that they called for improper rebuttal testimony, and the court was asked to reject it, but the testimony allowed to be given in such instances was either immaterial or nonprejudicial; hence the assignments are without force.
Of the judgment as against the - plaintiff in error, George F. H. Schwake, we must say that it is, in our view of the cause, without proof to sustain it. Anything he did was in his capacity as employé of the bank and not personally, unless it was his purchase of the note and mortgage, and we do'not believe from the evidence that this portion of the affair was of such a nature as to render him personally liable to the cross-petitioner. The judgment against the bank is affirmed, and as to George F. H. Sckwake.it is reversed.
Judgment accordingly.