First National Bank of Sutton v. Grosshans
| Decision Date | 20 March 1901 |
| Docket Number | 11,618 |
| Citation | 85 N.W. 542,61 Neb. 575 |
| Parties | FIRST NATIONAL BANK OF SUTTON, APPELLEE, v. JOHANNA GROSSHANS ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Clay county. Heard below before STUBBS, J. Affirmed.
AFFIRMED.
Thomas Ryan and L. P. Crouch, for appellants.
Thomas H. Matters, contra.
The appellee, as plaintiff, began an action in equity in the district court for Clay county, the object and purpose of which were to foreclose a lien which it claimed upon certain property, a portion of which is situate in the county in which the action was brought and a portion in the adjoining counties of York and Hamilton. Such lien arose by virtue of a quitclaim deed, alleged to have been executed by appellants Grosshans, conveying the interest of Johanna Grosshans, the wife of William Grosshans, in the real estate of her deceased father. It is alleged that the instrument was executed for the purpose of securing the payment of a note of $ 800, given by the Grosshans to one Peter Griess, and by him discounted with the plaintiff bank. The action has once before been tried in the district court, and from the decree finding in favor of the plaintiff and directing a sale of the interest of the grantor in the real estate mentioned for the satisfaction of the debt found due, an appeal was taken to this court, and the decree thus rendered was reversed for want of sufficient evidence to support the same. First Nat. Bank of Sutton v. Grosshans, 54 Neb. 773, 75 N.W 51. A statement of the case is found in the opinion, in which it is observed by HARRISON, C. J., writing the same: "A careful examination of the evidence convinces us that it is wholly insufficient to sustain the finding to the extent it involves and applies to Johanna Grosshans, that she executed the deed as a mortgage to aid in the negotiation or sale of the note to the bank, or to secure the payment of the note to Peter Griess, or to establish that the deed was executed by her as or for other than was disclosed by its face." The case was remanded, and after another trial de novo in which was introduced additional testimony, the trial court again found in favor of the plaintiff upon the issues joined, and entered a decree of foreclosure in conformity with the prayer in the petition. An appeal is again prosecuted in this court.
It is urged by the appellants that the opinion on the first appeal is decisive of the question, and that the decree should again be reversed. This contention would probably be correct if the testimony in both cases were the same. While we are not now advised as to the state of the evidence upon which the first appeal was reviewed, we find from an inspection of the present record that a great deal of additional and material evidence was introduced on the second hearing, and because thereof, we are to consider the present appeal upon the record now before us, uninfluenced by the prior decision.
It is said in the second paragraph of the syllabus in Missouri P. R. Co. v. Fox, 60 Neb. 531, 83 N.W. 744: "In such cases, the decision as to the sufficiency of testimony on a particular feature of the case, as disclosed by the record on the first trial, is not binding in a subsequent trial where the testimony is, or may be presumed to be, materially different, in the investigation of which a reviewing court is to be controlled by the record then before it, uninfluenced by such prior decision." The rule announced in the Fox Case is but following that stated in Hiatt v. Brooks, 17 Neb. 33, 22 N.W. 73. It is quite apparent, upon a reading of the opinion on the first appeal, that while the evidence was deemed insufficient to support the finding of the trial court, the decree was reversed and the case remanded for the purpose of permitting the plaintiff to supply the deficiency in the evidence, if able to procure the same, and we are now to determine whether this has been done under the evidence as presented on the second trial.
By its petition the plaintiff's right to the relief prayed for is based upon substantially the following allegations: That appellants Grosshans were indebted to one Peter Griess in the sum of $ 800, evidenced by their promissory note in his favor; that the payee, desiring to discount the note with the appellee bank, the same was effectuated by the payee guaranteeing its payment, and the payors executing a quitclaim deed to the interest of Johanna Grosshans in her deceased father's real estate described therein, which, while the form was that of a deed of conveyance, was in fact intended to be and was taken as security for the note mentioned; whereupon, and in consideration of which, the note was discounted with the appellee bank, who paid to the payee the proceeds arising therefrom; default in the payment of the note with prayer for equitable relief.
In answer to the petition, as we construe it, the appellant Johanna Grosshans, pleaded a defect of parties, and a misjoinder of causes of action; an admission that she signed the note, alleging that it was as surety only; a denial of some of the formal allegations of the petition, and an admission as to others; also, alleging the pendency of prior suits involving the same subject matter. As to the allegation of the execution and delivery of the quitclaim deed pleaded in the petition, the ninth paragraph of the answer is as follows: "This defendant alleges that the deed described in the petition she never heard of, and had no knowledge of its existence until this suit was commenced; that she has not to this day ever seen it; that she has never knowingly nor intentionally nor voluntarily signed said deed, that she never acknowledged the execution of it in the presence of any officer authorized by law to take the acknowledgment of deed; and that she never executed it in the presence of any such officer; that if any...
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