Dunham v. Courtnay

• Decision Date: 17 October 1888
• Citation: 24 Neb. 627,39 N.W. 784
• Parties: DUNHAM ET AL. v. COURTNAY ET AL.
• Court: Nebraska Supreme Court

24 Neb. 627

39 N.W. 784

DUNHAM ET AL.

v.COURTNAY ET AL.

Supreme Court of Nebraska.

October 17, 1888.

Syllabus by the Court.

In an action in equity brought by certain mortgagors of real estate against the purchasers to redeem, upon the ground that the proceedings in foreclosure were void, the plaintiff's attorney, after the cause had been submitted to the court, and while being held under advisement, offered to introduce in evidence a copy of the original affidavit, on which service by publication was had, which offer the court refused, and afterwards rendered judgment against the plaintiff, and dismissed the action. Held that, to obtain a review on error of the refusal of the court to permit the filing of said affidavit, the plaintiff must have filed a motion for new trial.

Where the answer of a defendant fails to constitute a defense to the action, but no objection was made thereto in the court below, nor error on that ground assigned in the supreme court, the question will not be considered.

Error to district court, Lancaster county; HAYWARD, Judge.George H. Hilton, for plaintiffs in error.

D. G. Courtnay, for defendants in error.

MAXWELL, J.

This is an action to redeem certain real estate, the cause of action being stated as follows: “That on or about the 2d day of November, A. D. 1875, one Henry Atkins recovered a judgment for the sum of $799.04 in the district court of Lancaster county, Neb., against the said Eleanor Hilton and others; and on or about the 17th day of February, 1879, an order of sale was issued on said judgments at the instance of Henry Atkins, the plaintiff therein, and placed in the hands of J. S. Hoagland, sheriff of said Lancaster county, who on the 21st day of March, 1879, sold said real estate, under and by virtue of said order of sale, to the defendant herein, Martha I. Courtnay, and thereafter said sale was by the said district court confirmed; and on the 3d day of April, 1879, the said sheriff executed and delivered his deed to the said Martha I. Courtnay therefor; and said deed was, on the 7th day of April, 1879, filed for record in the clerk's office of said Lancaster county, and recorded in Book 1 of Deeds, page 129. That said judgment is not now, nor at any time has been, a lien upon said real estate, or any part thereof, for the reason that no summons was ever issued and served upon the said Eleanor Hilton, nor any constructive service or notice of said action given to the said Eleanor Hilton, as...