Colby v. Foxworthy

• Decision Date: 10 April 1908
• Docket Number: No. 15,330.,15,330.
• Citation: 115 N.W. 1076,80 Neb. 244
• Parties: COLBY v. FOXWORTHY.
• Court: Nebraska Supreme Court

80 Neb. 244

115 N.W. 1076

COLBY

v.FOXWORTHY.

No. 15,330.

Supreme Court of Nebraska.

April 10, 1908.

Motion for rehearing overruled.

For former opinion, see 114 N. W. 174.

*1076Flansburg & Williams, for appellant.

L. C. Burr and Edward P. Holmes, for appellee.

PER CURIAM.

This case is again before us on a motion for a rehearing, which is asked for on the theory that we have overlooked and failed to consider certain evidence contained in the record which it is claimed would have required us to affirm the judgment of the district court.

It is practically conceded in the briefs in support of the motion, and rightly we think, that the only question left for determination is whether or not the word “gold” was stamped in the notes and mortgage sought to be foreclosed in this action before they were executed by the defendant. From the citations of authorities it seems quite evident that counsel have overlooked the fact that, under the statutes and the rules now in force for the trial of appeals in equity cases, we are not at all bound by the findings and judgment of the trial court, but must try such cases de novo, reach our own independent conclusions as to the weight, credibility, and effect of the evidence, and render our judgment without reference to the conclusion reached by the district court, or the fact that the record contains some evidence to support it. Grandin v. First Nat. Bank, 70 Neb. 730, 98 N. W. 70;Naudain v. Fullenwider, 72 Neb. 221, 100 N. W. 296;Michigan Trust Co. v. City of Red Cloud, 69 Neb. 585, 96 N. W. 140;Winston v. Armstrong (Neb.) 104 N. W. 941;Omaha Loan & Bldg. Ass'n v. Hendee (Neb.) 108 N. W. 190;Roe v. Howard County (Neb.) 106 N. W. 587, 5 L. R. A. (N. S.) 831, note; Stocker v. Nemaha County, 72 Neb. 255, 100 N. W. 308.

Before considering the evidence, it is necessary to dispose of the defendant's contention that the plaintiff should have no standing in this case because she has twice changed her theory as to when the word “gold” was stamped in the mortgage in question. It sufficiently appears that the mortgage was given to the Lombard Investment Company, and several months afterwards was sold to the plaintiff, who resides in New Hampshire. She personally knew nothing of the parties or the circumstances of the giving and making of the mortgage, and, upon default of payment, instituted foreclosure proceedings. *1077Mrs. Foxworthy, the principal defendant, pleaded an alteration in the notes and mortgage subsequent to their execution by her. When the action was commenced the Lombard Investment Company had failed, its managing officer in Lincoln was dead, and its employés were scattered. Upon the first trial in the court below the only evidence upon the question of the alteration of the instruments was furnished by defendant. Not being able to meet this evidence, and having no means at hand, at that time of showing that it was untrue, the plaintiff changed her theory of the case, and filed an amended petition in which she admitted the alteration by the insertion of the word “gold” before the word “dollars,” thereby making the notes and mortgage payable in gold. But she alleged that such alteration was not made by her; that it was an unauthorized act by some unknown person, and sought to recover upon that theory. Later on, however, John West, the son of the manager of the Lombard Investment Company at Lincoln, the person who prepared the notes and mortgage in controversy, was located, and the residence of Mr. Jones, the former cashier of that company was ascertained, their evidence was procured, and it was thus made apparent to the plaintiff that the word “gold” was stamped into the notes and mortgage prior to their execution. Thereupon she again changed her theory of the case, withdrew her amended petition, and elected to stand upon her original pleading. Much fault is found because in our original opinion no special attention was given to the amended petition, which was offered in evidence, and by which the alteration of the notes and mortgage was admitted. We have not overlooked the admission, but did not mention it because we deem it quite immaterial. The plaintiff, when she filed her amended petition, had no personal knowledge of the controverted facts, and her admission was made by counsel and under circumstances which led her to believe that it was true, as claimed, that the instrument had been altered, as she then inferred, by some one other than herself, and without her knowledge. However, when she discovered a different state of affairs, she promptly withdrew the amended pleading, and the admission thus made should not be allowed to prejudice her substantial rights. We have carefully read the evidence tending to show the alleged alteration, all of which is given by Mrs. Foxworthy and one Miss Dowden, both of whom have testified on two different occasions in this case. On the first occasion both of these witnesses testified that the notes and mortgage were signed on the 13th day of October, and the money...