Frenzer v. Phillips

• Decision Date: 22 December 1898
• Docket Number: 8538
• Citation: 77 N.W. 668,57 Neb. 229
• Parties: PETER FRENZER, APPELLEE, v. JAMES PHILLIPS, APPELLANT
• Court: Nebraska Supreme Court

77 N.W. 668

57 Neb. 229

PETER FRENZER, APPELLEE, v. JAMES PHILLIPS, APPELLANT

No. 8538

Supreme Court of Nebraska

December 22, 1898

APPEAL from the district court of Douglas county. Heard below before AMBROSE, J. Affirmed.

AFFIRMED.

Francis A. Brogan, for appellant.

Will H. Thompson, contra.

OPINION

RYAN, C.

This action for the foreclosure of a real estate mortgage was begun in the district court of Douglas county, May 4, 1895. The note secured by the mortgage was by its terms due December 1, 1896. The option, and the exercise of the option to foreclose, were asserted by averments of the petition that these rights were given plaintiff by the instruments sued on, and were available by reason of defendant's defaults in paying interest and taxes. There were two defenses, of which one was that the mortgage, not being due by its terms, was not subject to foreclosure, because the mortgagee had neither possessed nor exercised an option in that respect. On the trial there was uncontradicted evidence which sustained each of the above noted averments of plaintiff's petition; hence the defenses pleaded are unavailing to the defendant by whom this appeal is prosecuted.

The other defense related to alleged irregularities in the authorization by the sheriff of a person to serve the summons upon the defendant in the state of New York, wherein he was residing. After the service criticized had been made, however, there was service by publication. This latter service was attacked by motion on special appearance, because the affidavit upon which it was founded had been filed in May, 1895, and the publications were September 4, 11, 18, and 25, 1895, and before there had been a ruling with reference to the sufficiency of the personal service. This motion was overruled, and to this ruling there was no exception. We cannot consider the correctness of this ruling, for two reasons: First, because of the failure to except, and, second, because this case is presented for review upon appeal and not upon error proceeding. (Ainsworth v. Taylor, 53 Neb. 484, 73 N.W. 927; Alling v. Nelson, 55 Neb. 161, 75 N.W. 581; Village of Syracuse v. Mapes, 55 Neb. 738, 76 N.W. 458.) There is advanced by the appellant no other reason for the reversal of the judgment of the district court, and accordingly such judgment is

AFFIRMED.