Jones v. Null

• Decision Date: 31 July 1879
• Citation: 9 Neb. 57,1 N.W. 867
• Parties: REBECCA JONES ET AL., PLAINTIFFS IN ERROR, v. WILLIAM NULL, DEFENDANT IN ERROR.
• Court: Nebraska Supreme Court

9 Neb. 57

1 N.W. 867

REBECCA JONES ET AL., PLAINTIFFS IN ERROR,

v.WILLIAM NULL, DEFENDANT IN ERROR.

Supreme Court of Nebraska.

July Term, 1879.

Error from Gage County.

W. H. Ashley, for plaintiff in error.

Macon & Whedon, for defendant in error.

MAXWELL, C. J.

--The errors assigned in this case are-- First, that the court had not jurisdiction of the subject of the action; second, that the facts set forth in plaintiffs' petition are not sufficient to constitute a cause of action; third, that the record does not show that any of the parties to the action appeared personally or by an attorney on the day of the rendition of the judgment; fourth, that it appears from the record that Jane Poole and Sarah Ann Drew were each in default of an answer, and that no default was taken against them; fifth, that the amount found due purports to have been so found by consent of parties, when it appeared from the record that a portion of the defendants were infants, and incapable of consenting, etc.; sixth, that the record shows that the cause was in the hands of a referee to take proofs as to John Jones, and that the cause was still pending under the order of reference at the time of the rendition of the judgment.

Section 227 of chapter 17, General Statutes, provides that “no action shall be commenced against the executor or administrator, except actions to recover the possession of real or personal property, and actions for relief other than for the recovery of money only, and such actions as are permitted by this chapter; nor shall any attachment or execution be issued against the estate of the deceased until the expiration of the time limited by the court for the payment of the debts, except in the actions mentioned in this section and in the cases provided for in section 272.”

Section 272 provides that “if the giving of notice for the examination and allowance of claims against the estate, before the judge or commissioners, shall in any case be omitted for the period of one year after the granting of letters testamentary or of administration, no person having any contingent or other lawful claim against a deceased person shall be prevented from prosecuting the same against the executors, administrators, heirs, devisees or legatees, as the same may be, who shall have received real or personal property from the estate; and in all cases a creditor having a lien upon the real or personal estate of the deceased by judgment, execution or attachment, previons to his death, may proceed to enforce such lien the same as if such death had not occurred.”

It will be perceived that actions for relief, other than for the recovery of money only, are excepted from the operations of this act. Does an action for the foreclosure of a mortgage come within this designation? An action for the recovery of money only is one where it is sought to reduce a debt to judgment, upon which an execution may issue, and be levied upon the property of a defendant not exempt. An action to foreclose a mortgage is brought for the purpose of determining, by the judgment of the court, the amount due, and subjecting the lands mortgaged to the payment of the same. Such an action is not one for...