58 Neb. 802 | Neb. | 1899
Lead Opinion
This is an appeal by George Graves from a judgment of the district court of Antelope county. The facts es
It is contended that the summons not having been returned within the time limited by the statute, the court acquired no jurisdiction over the person of the appellant, and that the judgment rendered against him was there
The next question for consideration is the power of the court to render a personal judgment in favor of MaCfarland and against Graves in the absence of an allegation in the petition showing that Graves had assumed the mortgage debt. It is the settled doctrine of this court that one who purchases mortgaged premises and assumes as part of the consideration to pay the mortgage debt becomes personally liable for any deficiency that may remain after applying the proceeds of the foreclosure sale. (Cooper v. Foss, 15 Neb. 515; Stover v. Tompkins, 34 Neb. 465; Rockwell v. Blair Savings Bank, 31 Neb. 128; Hare v. Murphy, 45 Neb. 809.) The purchaser in such case is regarded as the principal debtor, and the mold
Counsel for appellant insists that the court was- not authorized to render a deficiency judgment without special notice of the application therefor. The usual practice undoubtedly was to serve such notice when practicable; but the statute which gave the right to -a deficiency judgment in an action to foreclose a mortgage did not require it. Section 847 of the Code of Civil Procedure,- which was repealed in 1897, clearly contemplated no other notice than that imparted by the original summons.
We come now to the question of the sufficiency of the evidence to sustain the finding of the trial court that there was due service of the summons in the foreclosure suit upon George Graves. In our judgment the proof completely warrants the claim of appellant that he was never served, and that the officer’s return of service was false. The district court was, of course, in a better position than we are to determine the credibility of witnesses, We do not lose sight of that fact, We take it
Reversed.
expressed no opinion as to' the doctrine stated in fifth paragraph of the syllabus,
Dissenting Opinion
dissenting.
I find myself unable to reach the conclusion that the evidence adduced on the trial is insufficient to sustain the finding of the court below that service of summons was not duly made upon George Graves in the foreclosure cause. In addition .to the sheriff’s return indorsed on the summons in that suit, and the presumption which must be indulged in favor of its truthfulness, there is the clear, positive, and direct testimony of that officer that he served the summons on Graves at his residence in Neligh on the date named in the return by leaving' a true copy of the writ for him with Mrs. Graves. Certainly this evidence was sufficient to support the finding of the district court. There was a large mass of evidence introduced tending to show that the summons was not served upon Graves, which would have warranted the court below in deciding this point in favor of Graves. There Avas a sharp conflict in the evidence, and to disturb the judgment of the district court is to disregard the rule time and again asserted and applied by each member of this court that a finding of fact based on conflicting evidence will not be disturbed on review.