Franse v. Armbuster

• Decision Date: 07 January 1890
• Citation: 28 Neb. 467,44 N.W. 481
• Parties: FRANSE v. ARMBUSTER.
• Court: Nebraska Supreme Court

28 Neb. 467

44 N.W. 481

FRANSE

v.ARMBUSTER.

Supreme Court of Nebraska.

Jan. 7, 1890.

Syllabus by the Court.

In an action to foreclose a mortgage on real estate, the mortgagor having removed from the state before the bringing of the action, service of summons was had upon a brother of the mortgagor, who resided near the land mortgaged, but on whom legal service in that action could not be made. A decree of foreclosure and sale was thereupon rendered, when the aforesaid brother, in the name of the mortgagor, put in a stay of the order of sale for nine months, of which the mortgagor was duly notified. After the expiration of the stay, an order of sale was issued, and the land duly sold, the mortgagor being present in the county-seat at the time, but making no objection thereto nor to the order confirming the sale and ordering a deed. Held, that the mortgagor, by availing himself of the stay taken in his name by his brother, thereby appeared in the action, which was concluded by the decree of foreclosure and sale thereunder.

Error from district court, Cuming county; WAKELEY, Judge.

Action of ejectment by T. M. Franse as grantee of one Robert B. Millar, against Sigmund Armbuster, the purchaser of the land at foreclosure sale. Judgment for defendant. Plaintiff brings error.T. M. Franse, for plaintiff in error.

J. F. Losch and M. McLaughlin, for defendant in error.

MAXWELL, J.

This is an action of ejectment, brought by the plaintiff against the defendant in the district court of Cuming county, to recover the possession of certain real estate. On the trial of the cause the court found the issues in favor of the defendant, and dismissed the action. The testimony tends to show that in March, 1878, one Robert B. Millar, the then owner of the land in controversy, gave a mortgage on said land to Aultman & Taylor Company, to secure the sum of $713.35; that default was made in the payment of the amount secured by said mortgage, and in April, 1879, a decree of foreclosure and sale was had. At the time the action to foreclose the mortgage was brought, Robert B. Millar was residing in the territory of Dakota, and service of the summons in that action was made on his brother, William Millar, as agent. It is not claimed that William Millar was appointed the agent of his brother under the provisions of the statute, or that service upon him possessed any validity, and, had there been no further appearance in the case, the decree would have been void....