Frashier v. Miles

• Decision Date: 18 March 1880
• Citation: 10 Neb. 109,4 N.W. 930
• Parties: FRASHIER v. MILES AND OTHERS.
• Court: Nebraska Supreme Court

10 Neb. 109

4 N.W. 930

FRASHIER

v.MILES AND OTHERS.

Supreme Court of Nebraska.

Filed March 18, 1880.

Error from Richardson county.

Schoenheib & Thomas, for plaintiff.

George P. Uhl, for defendant.

MAXWELL, C. J.

This action was commenced by the plaintiff in the district court of Richardson county to redeem certain real estate claimed by him from a sale under a decree of foreclosure to which he was not made a party.

The petition alleges that on the twenty-sixth day of May, 1869, Francis X. Frashier executed a mortgage to Stephen B. Miles on the N. 1/2 of section 33, township 3 N., range 16 E., and on the N. W. 1/4 of section 24, township 2 N., range 16 E., to secure the payment of the sum of $1,800 and interest, which mortgage was duly recorded; that on the sixth day of July, 1871, Frashier and wife conveyed to Eugene Frashier the N. E. 1/4 of section 33, which deed was duly recorded on the twenty-sixth day of July of that year; that on the twenty-eighth day of October, 1874, Eugene Frashier and wife conveyed said land to the plaintiff, the deed therefor being filed for record on the fifth day of November, 1874; that on the twenty-eighth day of October, 1874, Francis X. Frashier and wife conveyed to plaintiff the N. W. 1/4 of said section 33, which deed was duly recorded, but at what time does not appear.

It is also alleged that in the year 1872 Miles released the N. W. 1/4 of section 24, above described, and that a large portion of said mortgage debt had been paid prior to the fifteenth of April, 1874, and that on that day Francis X. Frashier and Miles agreed that all that was due on said mortgage was the sum of $583.41, and that Francis X. Frashier then executed and delivered to Miles his note for that amount, payable May 26th of that year; that on the twelfth of August, 1875, Miles commenced an action to foreclose the mortgage in the district court of Richardson county, and Francis X. Frashier, ________ Frashier, his wife, and Louis Frashier, were made defendants; that no summons was served upon the plaintiff, nor was he served by publication or otherwise, nor did he have any notice whatever of the pendency of the suit, and he made no appearance in the action, and the court acquired no jurisdiction as to time. Judgment was rendered in the court below dismissing the action. The plaintiff brings the cause into this court by petition in error. The only question before this court is, do the recitals in the decree of foreclosure estop the plaintiff from showing that the court had not jurisdiction as to time? The decree in that case is as follows:

“ Stephen B. Niles v. Francis X. Frashier and _____ Frashier, his wife, and Louis Frashier.

Now comes the plaintiff, and the defendants having been duly served with notice and brought into court herein, and failing to answer or otherwise plead, make default. It is therefore ordered, that a default be, and the same is, hereby entered against all the detendants, and the court do find that that there is due to plaintiff from defendant, Francis X. Frashier, on the note described in the petition, the sum of $711.75, and that the same shall draw interest at the rate of 12 per cent. per annum until paid, and that the same is secured by mortgage upon the real estate described in plaintiff's petition, and that said sum is the first and prior lien on said real estate against all the defendants herein, or any right or title they may have or claim therein.

It is, therefore, considered, adjudged and decreed that the said mort gage be and the same is hereby foreclosed against each and all of the defendants, and that said Francis X. Frashier pay the said amount, with 12 per cent. per annum interest, and that in default of such payment the sheriff of said county, who is hereby appointed special master commissioner for that purpose, be and is hereby ordered to appraise, advertise and sell said real estate, to-wit: The N. 1/2 of section 33, town 3 N., range 16 E. of sixth principal meridian, in Richardson county, * * as upon execution, and apply the proceeds of such sale in satisfaction of the said amount due plaintiff as aforesaid, and costs of suit taxed at $17.60.”

It appears from the record that Francis X. Frashier and wife were notified of the pendency of the action by publication in a newspaper. The following is a...