Britton v. Larson
| Decision Date | 14 April 1888 |
| Citation | 37 N.W. 681,23 Neb. 806 |
| Parties | JAMES BRITTON, PLAINTIFF IN ERROR, v. G. L. LARSON, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Wayne county. Tried below before CRAWFORD, J.
AFFIRMED.
Frank M. Northrop and A. C. Wakeley, for plaintiff in error, cited Freeman Judgments, Secs. 123, 127. Thatcher v Powell, 6 Wheat. 119. Gray v. Larrimore, 4 Sawyer, 638. Wade on Notice, Secs. 1029, 1031. King v. Harrington, 14 Mich. 532. Cissell v. Pulaski County, 10 F. 893. Sioux City & P. R. Co. v Washington County, 3 Neb. 41. Spiers v. Halstead, 71 North Carolina, 209.
C. C. McNish, Hopewell & Dickinson, and A. A. Welch, for defendant in error, cited: Fulton v. Levy, 21 Neb. 478. McCormick v. Paddock, 20 Id., 486. Fouts v. Mann, 15 Id., 172. Carey v. Reeves, 32 Kan. 718. Grebe v. Jones, 15 Neb. 315. Gillespie v. Thomas, 23 Kan. 138. O'Brien v. Gaslin, 20 Neb. 347. Taylor v. Courtnay, 15 Id., 190. Foreman v. Carter, 9 Kan. 674.
This was an action of ejectment brought by plaintiff in error against defendant in error, to recover the northeast quarter of section number twenty-nine, in township number twenty-five north, of range four east, in Wayne county. A trial in the district court resulted in a verdict in favor of defendant, upon which judgment was rendered. Plaintiff brings the case into this court by proceedings in error.
It appears from the record that, in the month of April, 1875, and prior thereto, one Harry Brownson was the owner of the real estate in question; that prior to that time, to-wit, on the 8th day of March, 1871, for the purpose of securing a promissory note for the sum of $ 238, due to the First National Bank of Omaha, six months after its date, Harry Brownson and Jennie Brownson (his wife) executed and delivered to the said First National Bank a mortgage on said real estate. On the 16th day of April, 1875, a summons was issued to the sheriff of Wayne county directing him to notify the said Harry Brownson and Jennie Brownson of the institution of the action for the foreclosure of the mortgage referred to. The record seems to leave in doubt the date of the commencement of the action, but it is shown that the petition was sworn to by the attorney for the plaintiff in the action, on the 28th of July, 1874. The suit was instituted in the name of the First National Bank of Omaha, Nebraska, as plaintiff, against Harry Brownson and Jennie Brownson. The summons was returned on the day of its issue, not served, the defendants not being found in the county of Wayne. On the next day an affidavit, showing the non-residence of the defendants Brownson, was filed, and service was had by publication. On the 24th of August of the same year, a decree of foreclosure was rendered, and the land ordered to be sold to satisfy the amount found due upon the note of Harry Brownson. The land was sold, under the order of court, to plaintiff in that action, and on the 20th day of September, 1876, the sale was confirmed and the sheriff was directed to execute the usual deed to the purchaser, which was done. There is no question as to the chain of title of defendant Larson, under this decree. The record shows the issuance of the patent by the United States, conveying the land to Harry Brownson, his mortgage to the bank, the foreclosure proceedings, the purchase of the land at sheriff's sale by the bank, and its warranty deed to Larson.
On the 18th day of February, 1885, Harry Brownson and wife conveyed the real estate to plaintiff herein, by quit-claim deed, for the consideration, as expressed therein, of one dollar. It is insisted by plaintiff that the district court had no jurisdiction to render the decree of foreclosure. This contention is based upon the alleged defect in the affidavit showing the non-residence of the Brownsons, upon which service by publication was made, and also upon the alleged defect of the proof of the publication of the notice filed in that court, prior to the rendition of the decree. The affidavit of non-residence is as follows:
The objections to this affidavit are: First, That it does not show the property mortgaged, and over which the jurisdiction was said to be obtained, was situated in Wayne county, or in the state of Nebraska, and there was no attempt to describe it. Second, It does not show the defendants could not be served with summons within the state, and therefore does not comply with the requirements of sections 77 and 78 of the civil code, and hence the proceedings under it were void.
It will be observed that the reference to the mortgage contained in the affidavit is, that the action is for the recovery of the judgment on the note, and "for the foreclosure of the certain mortgage given by said defendants to said plaintiffs to secure the payment of said note."
Sec. 77 of the civil code, which has often been construed by this court, provides when service by publication may be had, the first of which is, "in actions brought under the fifty-first, fifty-second, and fifty-third sections of this code, where any or all of the defendants reside out of the state."
The fifty-first section of the code, referred to in section 77, provides for the "sale of real property, under a mortgage lien or other incumbrance or charge."
It is provided by section 78 of the code that, before service can be made by publication, an affidavit must be filed that service of summons cannot be made within this state, on the defendant or defendants, to be served by publication, and that the case is one of those mentioned in section 77. The question here presented is, do these facts sufficiently appear by the affidavit?
It is alleged that the affidavit is defective, because it fails to state that the mortgaged property was in Wayne county, where the action was brought. This question was before this court in Grebe v. Jones, 15 Neb. 312, 18 N.W. 81, and it was held that an affidavit which states that service of summons cannot be made within the state on the defendant to be served by publication, and facts bringing the case within section 77 of the code, is sufficient, without referring to that section.
In Fouts v. Mann, 15 Neb. 172, 18 N.W. 64, it was held that, if land of the description given is within a county where an action is commenced to foreclose a mortgage thereon the omission of the name of the county or...
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