First Nat. Bank of Wymore v. Myers
| Decision Date | 05 March 1895 |
| Citation | 62 N.W. 459,44 Neb. 306 |
| Parties | FIRST NAT. BANK OF WYMORE v. MYERS ET AL. |
| Court | Nebraska Supreme Court |
1. In an action by an attaching creditor of a mortgagor to vacate the mortgage for fraud, plaintiff pleaded that “on the 17th day of April, 1890, and before the levy of the attachment, * * * A. and B. conveyed the land to the mortgagee.” This the answer admitted. Held, that evidence that the mortgage was not delivered until after the levy of the attachment was irrelevant and foreign to the issues.
2. In such case, a general averment in the answer, denied in the reply, that the mortgage was prior to all other liens, does not prevail against the specific pleading of fact, and does not put the date of delivery of the mortgage in issue.
3. Amendments will not be allowed after judgment, where their effect would be to substantially change the cause of action or defense.
4. Amendments will not be allowed where to do so would prejudice the rights of the adverse party.
5. Bank v. Myers, 56 N. W. 889, 38 Neb. 152, reaffirmed.
On rehearing. Affirmed.
For former opinion, see 56 N. W. 889.
An opinion was written in this case, affirming the judgment of the district court, and filed November 8, 1893, Bank v. Myers, 38 Neb. 152, 56 N. W. 889. The nature of the case is there briefly stated. The inquiry was then directed solely to whether a sufficient consideration had been shown for the conveyances to Holt. On a motion for a rehearing it was urged that the proof disclosed that, while the conveyances to Holt were dated and filed for record before the levy of plaintiff's attachment, still the conveyances had been made without the knowledge of the grantee, had been filed for record by the grantor, and were not delivered to the grantee until after the levy of the attachment, the grantee not till then knowing of their existence or their delivery. It was argued that under this state of the evidence the lien of the attachment was superior to that of the mortgages. It seeming that this phase of the case had probably not received proper attention, a rehearing was allowed. The case has been reargued, and, having considered all the questions presented, we see no reason for reaching a conclusion different from that reached on the former hearing. It is true that there is in the record evidence tending to show a state of facts in regard to the delivery of the mortgages in accordance with the argument of the appellants. All material portions of this evidence were admitted, over the objections of the appellees, on the ground that the testimony was irrelevant under the pleadings. The petition, after alleging the levy of the plaintiff's attachment on May 10, 1890, and the subsequent entry of judgment in the attachment case, avers “that on the 17th day of April, A. D. 1890, and before the levy of the attachment and the rendition of a judgment in this case, the said James D. Myers and ______ Myers, his wife, defendants, conveyed the following of the said above-described property to one Charles B. Holt,” etc. Similar allegations are then made in regard to the other conveyances. The gist of the action lay in the subsequent averment that these conveyances were made without consideration, and for the purpose of hindering and defrauding the plaintiff and other creditors of James D. Myers. The answer of Myers admitted the making of the conveyance in the words of the petition as above quoted, and the answer of Holt contained a similar admission. Both answers joined issue in regard to the consideration and purpose of the conveyance. So far as we have quoted the pleadings, then, it stood admitted of record that the land had been conveyed prior to the levy of the attachment. The date of the...
To continue reading
Request your trial