Albers v. Kozeluh

• Decision Date: 09 April 1903
• Docket Number: 12,732
• Parties: MARY ALBERS ET AL., APPELLANTS, v. JOSEPH KOZELUH ET AL., APPELLEES. [*]
• Court: Nebraska Supreme Court

94 N.W. 521

68 Neb. 522

MARY ALBERS ET AL., APPELLANTS, v. JOSEPH KOZELUH ET AL., APPELLEES. ^[*]

No. 12,732,

Supreme Court of Nebraska

April 9, 1903

APPEAL from the district court for Lancaster county: ALBERT J CORNISH, DISTRICT JUDGE. Reversed.

REVERSED AND REMANDED.

Willard E. Stewart, for appellants.

Arthur W. Lane, Fayette I. Foss, Ben V. Kohout and R. D. Brown contra.

DUFFIE C. AMES and ALBERT, CC., concur.

OPINION

DUFFIE, C.

About the year 1871 Henry Stately made homestead entry of the east half of the southwest quarter of section 22, township 7 north, range 5 east of the 6th P. M. in Lancaster county Nebraska. He received a patent therefor January 20, 1876. He occupied this land as a homestead until some time in 1880, when, his wife becoming insane and an inmate of the asylum for the insane at Lincoln, he found homes for his infant children--the oldest being then about eleven years of age--and went to Colorado for the avowed purpose of earning money to pay an incumbrance upon the land of $ 250, existing in the form of a mortgage made January 8, 1877, to the New England Mortgage Security Company, and to earn means to support and provide for his family, which he hoped to reunite at a future date. Some time after going to Colorado he died, and one J. C. Crooker, residing in the city of Lincoln and claiming to be the assignee of the mortgage made to the New England Mortgage Security Company, in January, 1886, brought an action to foreclose the same, obtained a decree of foreclosure, and in May, 1886, said land was sold under the decree and bid in by said Crooker, who afterwards sold the same to one Patterson, who thereafter sold and conveyed the same to the appellee Joseph Kozeluh.

James F. Lansing, a real estate and loan agent residing in the city of Lincoln, testified upon the trial, and his evidence was not contradicted, that he was doing business for the Corbin Banking Company of New York, which company was in some manner connected with the New England Mortgage Security Company, and apparently had charge of its collections, and that in the year 1882, Crooker & Gregory, claiming to act as attorneys for Henry Stately, paid in the amount due upon the Stately mortgage, which he forwarded to the Corbin Banking Company, and shortly thereafter received a release of said mortgage from the New England Mortgage Security Company, which he delivered to said Crooker & Gregory.

This action was brought by the children of said Stately, and by Royal L. Stewart, guardian of Dora Stately, his insane wife, to have the sheriff's deed made to Crooker and the subsequent conveyances of said land, canceled and set aside, and for the rental value of said premises during its occupation by the defendant.

It is first claimed that the mortgage was satisfied and discharged prior to the institution of foreclosure proceedings by J. C. Crooker. The evidence, to our mind, is quite conclusive that such is the case, but this can not avail the plaintiffs at this time. In his petition for a foreclosure Crooker alleged that he was the assignee of said mortgage, and the district court so found. If the court had jurisdiction to entertain and try the action this finding is conclusive, and can not be questioned in this action.

It is further urged that the district court had no jurisdiction to try and determine the foreclosure action, and this because no personal service was had upon the defendant Henry Stately, and no sufficient affidavit for service by publication was made and filed in the case. The affidavit is in the following form:

"In the District Court of Lancaster County, Nebraska.

"JABEZ C. CROOKER, Plaintiff, v. HENRY STATELY, DORA STATELY and L. B. BRONSON, Defendants. Affidavit.

"Jabez C. Crooker, plaintiff in the above entitled action, being first duly sworn, deposes and says, that on the day of January, A. D. 1886, he filed a petition in the district court of Lancaster county, Nebraska, against Henry Stately, Dora Stately and L. B. Bronson, the object and prayer of which is to foreclose a certain mortgage executed by the defendant to the New England Mortgage Security Company (and duly assigned to said plaintiff) upon the east half (1/2) of the southwest quarter of section 22, town 7 north, range 5 east, in Lancaster county, Nebraska, to secure the payment of a note and coupon, dated December 23, 1876, for the sum of $ 250 upon the note, and $ 18.20 upon coupon, due and payable December 23, 1881; that there is now due upon said note, coupon and mortgage, the sum of $ 374 and $ 37 attorney fees, and plaintiff prays that said premises may be decreed to be sold to satisfy the amount due thereon.

"Affiant further states that defendant, Henry Stately, is a nonresident of the state of Nebraska, and service of summons can not be made within this state upon him.

"Wherefore plaintiff prays service upon said defendant by publication. J. C. CROOKER.

"Subscribed in my presence and sworn to before me this 6th day of January, 1886.

J. H. BROWN,

"Justice of the Peace."

Objection is made to this affidavit because it does not state any facts showing the absence of the defendant from the state of Nebraska at the time it was filed. It does recite that Staley "is a nonresident of the state of Nebraska, and service of summons can not be made within this state upon him." An affidavit similar in this respect was held sufficient in Shedenhelm v. Shedenhelm, 21 Neb. 387, 32 N.W. 170.

It is further urged that the affidavit is fatally defective for want of venue. It will be observed that the affidavit does not disclose where it was made, or the county of which the justice before whom the same was executed was an officer. The authorities are conflicting as to the effect of a failure of an affidavit to disclose the venue where made. In New York and some other jurisdictions such failure is held fatal, while in Illinois and some other states it is said that the presumption will obtain that the affidavit was made in the proper county, and that the officer taking the same had jurisdiction to administer the oath. Our own decisions upon the question are not clear and satisfactory.

In Crowell v. Johnson, 2 Neb. 146, the affidavit was held sufficient, the court saying (p. 153): "The affidavit was sworn to before the clerk of the court in which the action was pending; and it will be presumed that the clerk administered the oath in the proper county."

In Merriam v. Coffee, 16 Neb. 450, 20 N.W. 389, where objection was made to the affidavit of an assessor, it is said (p. 451): "The first objection is, that there is no venue to the oaths of the assessors which were attached to the assessment rolls, nothing to show in what county or state they were administered. An examination of the record shows that the oath for the year 1870 was taken before the deputy clerk of Cass county, and filed in the office of the county clerk. The presumption in such case is that the oath was administered within the jurisdiction of the officer."

These cases are to the effect that where they show on their face that they were taken before an officer of the county where filed, the presumption obtains that they were made in that county.

In Blair v. West Point Mfg. Co., 7 Neb. 146, 152. where objection was made to an affidavit of service of a summons the...