First Nat. Bank of Chadron v. Engelbercht
| Decision Date | 22 December 1898 |
| Citation | 57 Neb. 270,77 N.W. 685 |
| Parties | FIRST NAT. BANK OF CHADRON v. ENGELBERCHT ET AL. |
| Court | Nebraska Supreme Court |
1. An action to foreclose a mortgage securing payment of a promissory note is not one founded upon an instrument for the unconditional payment of money only, within the meaning of section 129 of the Code of Civil Procedure. Lincoln Mortgage & Trust Co. v. Hutchins (Neb.) 75 N. W. 538, followed.
2. An action to foreclose a mortgage securing a debt evidenced by a writing is one founded on a written instrument as evidence of indebtedness, within the meaning of section 124 of the Code of Civil Procedure; and a copy of such evidence of the indebtedness must be attached to and filed with the pleading, and, if not so attached and filed, the petition must assign a sufficient reason therefor.
3. The object of said section of the Code of Civil Procedure in requiring copies of written instruments, upon which a suit is founded, to be attached to and filed with the petition, is to furnish the opposite party with a copy of the evidence of indebtedness sued on, for his inspection, and to enable him to prepare his defense.
4. The denial of a litigant of a right expressly conferred upon him by statute, which right he has not waived, and which he has demanded in due time and in a proper manner, is reversible error.
5. In a suit to foreclose a mortgage given to secure payment of a promissory note, the note was not incorporated into and made a substantive part of the petition; a copy of the note was not attached to the petition, and by express averment made a part thereof; a copy of the note was not attached to and filed with the petition, nor did the latter aver any reason why the last was not done. Held, that the overruling of a motion of defendant to require the plaintiff to attach to and file with his petition a copy of the note was reversible error.
6. In a suit to foreclose a mortgage securing the payment of a debt evidenced by another written instrument, neither the evidence of the debt, nor the mortgage which secures its payment, need be incorporated into the petition, nor need a copy of either the note or mortgage be attached to the petition and made a part thereof by express averment, nor need a copy of the mortgage be attached to the petition, but only a copy of the evidence of the indebtedness should be attached to and filed with the petition.
Appeal from district court, Sioux county; Kinkaid, Judge.
Action by the First National Bank of Chadron and others against George Engelbercht. W. K. Miller, and others. From a decree for plaintiff, defendant Miller appeals. Reversed.R. C. Noleman, for appellant.
A. W. Crites, for appellee.
In the district court of Dawes county the First National Bank of Chadron brought suit against George Engelbercht, W. K. Miller, and others to foreclose an ordinary real-estate mortgage given to secure payment of a promissory note. The bank had a decree as prayed, and Miller has brought the judgment here for review.
In its petition the bank set forth with sufficient particularity the facts of the execution and delivery to it of the note and mortgage, and the facts of the maturity and nonpayment of the note which the mortgage was given to secure. The note was not copied into the petition. No copy of it was attached thereto and filed with the petition; nor did the latter aver any reason why a copy of the note was not so attached and filed. Miller moved the court for an order compelling the bank to attach and file with its petition a copy of the note on which its action was predicated. This motion was overruled, and the correctness of this ruling is the only question presented by this record.
Two sections of our Code deal with the subject of copies of instruments sued upon. Section 129 provides that: “In an action, counter-claim, or set-off, founded upon an account, promissory note, bill of exchange, or other instrument, for the unconditional payment of money only, it shall be sufficient for the party to give a copy of the account or instrument, with all credits and endorsements thereon, and to state that there is due to him on such account or instrument, from the adverse party, a specified sum, which he claims with interest.” It is to be observed that this section deals with an action founded upon an account, or upon some instrument for the unconditional payment of money only; and in such an action the pleading is declared to be sufficient, if the pleader gives a copy of the account or instrument, with all credits and indorsements thereon, and states that there is due him on such account or instrument, from the adverse party, a specified sum, which he claims, with interest. McArthur v. Drug Co., 48 Neb. 899, 67 N. W. 861. This section of the Code doubtless contemplates that a copy of the account or instrument should be attached to the pleading. It does not provide that such account or instrument shall be incorporated into, and thus made a substantive part of, the pleading, nor that a copy of the account or instrument shall be attached to the pleading and by express averment made a part thereof. Nevertheless, in an action founded on an account, or an instrument for the unconditional payment of money only, if the account or instrument be made a substantive part of the pleading, or if a copy of the account or instrument...
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