Cheney v. Janssen

• Decision Date: 29 September 1886
• Parties: GILEAD P. CHENEY, APPELLANT, v. JURGEN JANSSEN ET AL., APPELLEES
• Court: Nebraska Supreme Court

29 N.W. 289

20 Neb. 128

GILEAD P. CHENEY, APPELLANT, v. JURGEN JANSSEN ET AL., APPELLEES

Supreme Court of Nebraska

September 29, 1886

APPEAL from Johnson county district court. Heard below before BROADY, J.

Decree reversed and decree entered for the amount due.

OPINION

MAXWELL, CH. J.

On March 12th, 1885, the plaintiff filed a petition in the court below, stating his cause of action to be:

That on January 24th, 1876, the defendant Janssen made and delivered to one Mary Whyte his six promissory notes of that date payable to said Mary Whyte, or order. One note for $ 200, due five years after date; one note for $ 20, due one year after date; one note for $ 20, due two years after date; one note for $ 20, due three years after date; one note for $ 20, due four years after date; one note for $ 20, due five years after date, for value received.

That on the same day defendant Janssen and his wife executed and delivered to said Mary Whyte a mortgage on the north half of the south-west quarter and the north-west quarter of the south-east quarter of section 12, township 6, range 10, in Johnson county, to secure the afore mentioned notes, which mortgage was recorded on February 3rd, 1876, in the recorder's office of said county.

That before any of the said notes became due the same were endorsed by said Whyte to the plaintiff, who ever since has been and still is the owner and holder thereof.

That said indebtedness is due and unpaid.

The plaintiff prays that said mortgage may be foreclosed, the land sold, and proceeds applied to the payment of said indebtedness, costs, and attorney's fees.

The summons is dated March 12th, 1885, and was served March 18th 1885.

On March 30th, 1885, the defendants filed an answer, wherein they admit that said Janssen made and delivered to Mary Whyte the notes set out in plaintiff's petition, and to secure the same made the mortgage mentioned. They deny that said notes or mortgage, or any of them, were ever transferred to the plaintiff before maturity, or that he is the bona fide owner thereof, and they deny every other allegation in the petition.

Usury in the original transaction is alleged, and it is alleged that no assignment of the mortgage sued on from Whyte to plaintiff was ever made and recorded. It is also alleged "that on August 22nd, 1879, defendant Janssen commenced suit to cancel and discharge from record two mortgages against Mary Whyte and P. D. Cheney, alleging the usurious nature thereof, and brought into court $ 200, in full praying that said mortgage sued on be satisfied of record. Said Whyte and Cheney entered their appearance, and on April 9th, 1880, the court found generally against said Whyte, that there was due her $ 200. The same was then brought into court and there yet remains, and by that decree the mortgage mentioned in plaintiff's petition was cancelled and satisfied of record. Said decree remains in full force. Wherefore defendant prays that plaintiff be allowed to recover no more than $ 200 without interest. That by reason of said decree all questions are res adjudicata."

On May 1st, 1885, plaintiff filed a reply, denying that Mary Whyte entered her appearance in the suit of Janssen against Mary Whyte and P. D. Cheney, and denies that the questions are res adjudicata. In November, 1885, a trial was had, and a decree rendered in favor of the plaintiff for the sum of $ 237.60.

The following deposition contains all the testimony in relation to the...