Fouts v. Mann

• Decision Date: 18 December 1883
• Parties: DAVIS FOUTS, APPELLANT, v. HENRY P. MANN, APPELLEE
• Court: Nebraska Supreme Court

18 N.W. 64

15 Neb. 172

DAVIS FOUTS, APPELLANT, v. HENRY P. MANN, APPELLEE

Supreme Court of Nebraska

December 18, 1883

APPEAL from the district court of Gage county. Heard below before WEAVER, J.

AFFIRMED.

Colby & Hazlett, for appellant.

The second defense in the answer is not a counter-claim. Walker v. Millard, 29 N.Y. 375. Thorpe v White, 13 Johns. 56. 1 Parsons Notes and Bills, 197. Loomis v. Eagle Bank, 10 Ohio St. 327. Edgerton v. Page, 20. N. Y., 281. Duffy v. Duncan, 35 Id., 187. On signature of judge to decree, cited Nuckolls v. Irwin, 2 Neb. 66. Clough v. State, 7 Id., 321. Wise v. Frey, 9 Id., 220. Gillette v. Morrison, Id., 400. Defect in description in order of sale does not invalidate proceedings. Decree itself is authority for the action of the sheriff, not the order of sale. Rector v. Rotton, 3 Neb. 177. See also Douglass v. McCoy, 5 Ohio 522. Longworth v Bank, 6 Id., 536. Armstrong v. McCoy, 8 Id., 128. Spiller v. Nye, 16 Ohio 16. The confirmation of the sale cured irregularities. Rorer on Judicial Sales, 108. Phillips v. Dawley, 1 Neb. 320. Crowell v. Johnson, 2 Id., 146. Day v. Thompson 11 Id., 125.

L. M. Pemberton, for appellee.

On subject of counter-claim, cited: Pomeroy Rem., § 738. Bliss Code Pl., §§ 125, 372 and cases cited note 1, page 447. Smith v. Fife, 2 Neb. 10. Gordon v. Benner, 49 Mo. 570. Allen v. Shackleton, 15 Ohio St. 145. Isham v. Davidson, 52 N.Y. 237. Norris v. Tharp, 65 Ind. 47. On defects of affidavit for publication, cited: Atkins v. Atkins, 9 Neb. 191. McGavock v. Pollock, 13 Neb. 535. Shields v. Miller, 9 Kan. 390. Forbes v. Hyde, 31 Cal. 342. Claypoole v. Houston, 12 Kan. 324. On insufficient description of property, cited: Coben v. Trowbridge, 6 Kan. 385. 1 Jones on Mortgages, § 66 and cases cited. On notice of publication, cited: Crowell v. Galloway, 3 Neb. 215. Fanning v. Krapfl, 14 N. W. R., 728. Even if no order of sale was necessary, sheriff could not sell until he had given the notice required by law. Rorer, § 99. Wade on Notice, § 1088. Collins v. Smith, 15 N. W. R., 192. Wescott v. Archer, 12 Neb. 345. Wheatley v. Terry, 6 Kan. 427.

OPINION

MAXWELL, J.

In October, 1875, the defendant executed and delivered to the plaintiff five promissory notes each for the sum of one hundred dollars with interest, and payable in one, two, three, four, and five years. To secure the payment of these notes, the defendant and wife executed a mortgage upon the following described real estate, to-wit: Commencing at the north-west corner of the south-west quarter of the the south-east quarter of section seventeen, in town two north, of range seven east; thence running east seventeen rods, 22 1-5 links; thence south seventeen rods, 22 1-5 links; thence west seventeen rods, 22 1-5 links; thence north seventeen rods, 22 1-5 links to place of beginning, containing about two acres. The land is situated in or near the town of Blue Springs, and at the time the mortgage was given and now contains a dwelling-house and was worth from $ 500 to $ 800. The first note was paid in full and a considerable sum on one of the others with a portion of the interest. In February, 1878, the plaintiff commenced an action in the district court of Gage county to foreclose the mortgage, alleging that there was due thereon the sum of $ 142.90 with interest from January 4th, 1878. The defendants having removed from the state, an affidavit for constructive service upon them was filed and service had by publication. Notice by publication was duly made and a decree of foreclosure in proper form was duly rendered. Objections to the affidavit for publication and the notice will be considered hereafter. An order of sale was issued in which the premises were described as follows: "Commencing at the north-west corner of the south-west quarter of the south-east quarter of section seventeen, in town two north, of range seven east; thence running east seventeen rods, 22 1-5 links; thence south seventeen rods, 22 1-5 links; thence north seventeen rods, 22 1-5 links to the place of beginning." This mistake is found in the notice of sale, appraisement, return of the officer, and all the proceedings, including the first deed from the officer to Fouts. The plaintiff then took possession of the mortgaged premises, and has retained the possession ever since. In February, 1882, the plaintiff commenced an action by attachment against the defendant, Henry P. Mann, in the district court of Gage county, and caused certain property of Mann to be attached, upon the ground that he was a non-resident of the state.

To this action the defendant filed an answer, wherein, first, he alleges payment of one of said notes; second, that the defendant, in 1875, purchased the premises in question from the plaintiff for the sum of $ 700, $ 200 of which was paid in cash, and five notes for one hundred dollars each secured by mortgage on the premises were given for the balance, and that the notes sued on are a portion of said notes; that defendant paid the first of said notes and the interest on the remainder, and in addition $ 100 to apply on said indebtedness. The defendant then sets out the proceedings for the foreclosure of the mortgage, and the sale of the premises to the plaintiff thereunder, and claims that such proceedings are void, and asks that an account may be taken and the defendant be permitted to pay the amount due upon said mortgage. The plaintiff alleges that the second count of the answer does not constitute a counter-claim because it does not arise out of the contract or transaction set forth in the petition.

Sec. 101 of the code provides that the counter-claim must be one arise out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim or connected with the subject of the action.

There is no doubt the defense set up in the second count of the answer arises out of the transaction set forth in the petition as the cause of action, and is a valid counter-claim. Smith v. Fife, 2 Neb. 10. Allen v. Shackelton, 15 Ohio St. 145. Goebel v. Hough, 26 Minn. 252, 2 N.W. 847. Orton v. Noonan, 30 Wis. 611. McArthur v. Canal Co., 34 Wis. 139. Ainsworth v. Bowen, 9 Wis. 348. Norris v. Tharp, 65 Ind. 47.

2. Objection is made to the affidavit for service by publication. It is as follows, omitting the title:

"State of Nebraska, Gage County.

"Alfred Hazlett, being first duly sworn, upon his oath says that he is one of the attorneys for plaintiff in the above entitled action, duly authorized in the premises; that on the sixth day of February, 1878, said plaintiff in the above case filed his petition in the said court against said defendants to recover the sum of $ 142.90, with interest at 10 per cent from fourth of July, A.D. 1878, amount due on promissory note and interest as set forth in said plaintiff's petition, and asking that the mortgage described in plaintiffs petition be foreclosed, the said premises ordered sold, and the proceeds applied to the payment of said debt; said mortgage given on a certain plat or parcel of land containing two acres, more or less, described as follows: Commencing at the north-west corner of south-west quarter section 17, town 2 n., range 7 east, thence running east 17 rods, 22 1-5 links; thence south 17 rods, 22 1-5 links; thence west 17 rods, 22 1-5 links; thence north 17 rods, 22 1-5 links to place of beginning. The object of above action is to foreclose the above mortgage on above described real estate.

"The defendants, Henry P. Mann and Maria T. Mann, are non-residents of the state of Nebraska, and service of summons cannot be made upon them within the state of Nebraska, and plaintiff asks that service of publication may be had in above entitled cause, and for this purpose this affidavit is made by affiant.

"ALFRED HAZLETT.

"Sworn to and subscribed in my presence this seventh day of Feb'y, A.D. 1878.

"CHAS. O. BATES,

"[L. S.] Notary Public."

Sec. 51 of the code provides that actions for the sale of real property under a mortgage lien or other incumbrance or change shall be brought in the county in which the subject of the action is situated, except as provided in section 52, which refers to an entire tract situated in two or more counties, or separate tracts situated in two or more counties.

Sec. 77 provides for service by publication in actions brought under the provisions of sections 51 and 52, etc.

Sec. 78 provides that, "before service can be made by publication an affidavit must be filed that service of a summons cannot be made within this state on the defendant or defendants to be served by publication, and that the case is one of those mentioned in the preceding section. When such affidavit is filed the party may proceed to make service by publication."

It will be seen that two essential facts are to be stated in the affidavit. First, That service of a summons cannot be made within the state on the defendant or defendants to be served by publication. Second, The character of the action, so that it may appear that it is one in which service by publication may be made. If the affidavit shows that the action is one in which service by publication may be made and that service cannot be had upon the defendant within the...