Chadron Building & Loan Association v. Hamilton

• Decision Date: 18 June 1895
• Docket Number: 5616
• Citation: 63 N.W. 808,45 Neb. 369
• Parties: CHADRON BUILDING & LOAN ASSOCIATION, APPELLEE, v. E. L. HAMILTON ET AL., IMPLEADED WITH L. A. BROWER ET AL., APPELLANTS
• Court: Nebraska Supreme Court

63 N.W. 808

45 Neb. 369

CHADRON BUILDING & LOAN ASSOCIATION, APPELLEE, v. E. L. HAMILTON ET AL., IMPLEADED WITH L. A. BROWER ET AL., APPELLANTS

No. 5616

Supreme Court of Nebraska

June 18, 1895

APPEAL from the district court of Dawes county. Heard below before KINKAID, J.

AFFIRMED.

Spargur & Fisher, for appellants.

T. F Powers and J. L. Caldwell, contra.

OPINION

RYAN, C.

On July 30, 1891, the Chadron Building & Loan Association filed in the office of the clerk of the district court of Dawes county its petition praying for the foreclosure of a mortgage executed August 15, 1889, to it by E. L. Hamilton and his wife. This mortgage was filed for record September 9, 1889. Incidentally there was sought the reformation of said mortgage so as to describe correctly the west half of the southeast quarter instead of the mistaken description of the west half of the southwest quarter of the same section as was included in the mortgage. There were made defendants with the mortgagors certain judgment creditors of E. L. Hamilton to-wit, Lewis Ross & Co., L. A. Brower, and Charles Morrissey, of whom only the two last named appeal. The judgment in favor of L. A. Brower was by confession in the county court for the sum of $ 100, and of it a transcript was filed in the office of the clerk of the district court of Dawes county March 3, 1891. Charles Morrissey obtained his judgment against E. L. Hamilton before Omaha H. Wilson, a justice of the peace of Dawes county, for the sum of $ 150 on June 22, 1891, and on the same day a transcript thereof was filed in the office of the clerk of the district court aforesaid. The service of the summons in the foreclosure proceedings was made on both Morrissey and Brower, August 9, 1891. It is claimed by the appellees that upon the summons were indorsed the words "Injunction allowed," and as it was the duty of the clerk to make this indorsement, it is presumable that this claim is well founded, in the absence of a showing by the appellant's transcript what indorsements, in fact, were upon said summons. There was issued on a judgment rendered in favor of Lewis Ross & Co. against E. L. Hamilton an execution, on which the land, against which the mortgage was sought to be made operative in the foreclosure proceeding was, on August 12, 1891, sold to Charles Morrissey. On the 24th day of the last named month said execution sale was confirmed and a deed was then ordered to issue to Charles Morrissey. It does not appear from the record that the sheriff ever issued a deed under this confirmation. In the foreclosure proceedings the answer of Morrissey and that of Brower were simply general...