Hudson v. Pennock

48 Neb. 359 | Neb. | 1896

Ryan, 0.

This was a foreclosure proceeding brought in the district court of Adams county by Orlando Hudson to obtain satisfaction of three notes made by H. W. Pennock, secured by his mortgage. There were made defendants H. W. Pennock and his wife, and others, among whom was James L. Britton. To the usual averments for the foreclosure of a mortgage, H. W. Pennock answered admitting the making of the notes and mortgage, the credits of payments stated in the petition, the alleged recording of the mortgage, and that no proceeding at law had been had for the recovery of the debt secured. There was a denial that there was due upon the notes on October 24, 1892, the sum of $5,158.62, and a denial that said sum was due when the petition was filed. These alleged denials closed with this language: “And this defendant requires strict proof of the plaintiff as to the amount due upon said notes according to law.” This answer finally closed with a general denial of all matters not admitted as above stated. Upon the trial there were introduced in evidence only the notes and mortgage, and therefrom the court found there was due and subject to foreclosure on the date of the judgment, May 14, 1893, the sum of $5,287.23, and entered a decree accordingly. The appellant, Mr. Pennock, makes no complaint that this sum was incorrect, neither does he complain of any injustice in the decree, except as will now be described.

James L. Britton, a defendant, by his answer to the original petition having alleged that he was the holder of certain tax deeds on the mortgaged premises, described at length the several amounts of taxes which he had paid at various times after the issue to him of said tax deeds, and that he had served proper preliminary notices and had obtained the aforesaid tax deeds to be made by the treasurer of Adams county. The prayer of Mr. Britton was, to say the least, unique, as will be seen by the following copy of it: “Wherefore this defendant prays that this suit be dismissed at plaintiff’s cost, and for such other and further relief as justice and equity may require.” H. W. Pennoek answered the pleading of Mr. Britton, alleging various irregularities and omissions of substantive matters precedent to the making of the tax deeds, which, as he averred, rendered them invalid, and, having offered to pay in court $30 for the use and benefit of Mr. Britton, or any party thereto entitled, as the full amount of taxes really due, he prayed for a cancellation of the said tax deeds, and that upon payment of the amount tendered in full for the taxes and assessments he might go hence without day. The sole complaint of Mr. Pennoek upon this appeal is that the court, upon the motion of Mr. Britton, “dismissed Mr. Britton out of the case.” There is to be found in the record no such motion. In his brief Mr. Pennoek says this motion of Mr. Britton was made orally, but we cannot act upon this suggestion, especially in view of the only record recitations to be found, which are in the following language: “And now on this 18th day of May, 1893, this cause comes on for hearing upon the application and motion of the defendant James L. Britton to be dismissed out of this case. Upon consideration whereof the court, being satisfied that the showing made by the said defendant James L. Britton in support of his said application and motion is sufficient, the court sustains said motion and the said defendant James L. Britton is accordingly dismissed out of this case. To which ruling and action of the court the defendant H. W. Pennoek excepts, and his exceptions are by the court allowed.” It would seem from the above • recitation of a showing made that there was introduced some sort of evidence in support of Mr. Britton’s motion, but no bill of exceptions evidences the nature of such proofs. We cannot presume, in the absence of the motion itself and of the evidence upon which it was sustained, that there was prejudicial error in the ruling of the district court thereon, and this is just what we are required to do if we should sustain this appeal. The judgment of the district court is therefore

Affirmed.