Fulton v. Levy
| Decision Date | 23 March 1887 |
| Citation | 32 N.W. 307,21 Neb. 478 |
| Parties | FULTON AND ANOTHER v. LEVY. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
In an action to foreclose a mortgage of real estate, where service upon the defendants by publication is desired, an affidavit in the following form held sufficient: “Byron Reed, being first duly sworn, says he is the agent for the plaintiff in the above-entitled action, who is now absent from said Douglas county; that on the twenty-ninth day of August, 1876, the said plaintiff commenced his civil action in said district court for Douglas county, Nebraska, by filing his petition against the defendants above named, praying that certain lands situate in Douglas county, and in said petition particularly described, may be decreed to be sold to satisfy certain mortgages given by the said Emma Williams to said plaintiff, to secure the payment of a certain sum of money therein named, and the said Emma Williams has since conveyed the said premises to the said Eliza Whalen; and affiant further says that service of a summons cannot be made upon the said Emma Williams and Eliza Whalen within said state of Nebraska; that this affidavit is made for the purpose of obtaining service upon them by publication,--this cause being one of those mentioned in section 77 of the Code of Civil Procedure of the General Statutes of Nebraska, to-wit, being for the sale of real property under a mortgage; and further affiant saith not.”
Where there is a total failure to state a material fact in the affidavit, the court will acquire no jurisdiction by publication of the notice; but where there is not an entire omission to state such fact, but it is not fully set forth, the proceedings are not void, but merely voidable.
Quære, whether ejectment will lie against the mortgagee in possession under a proceeding in foreclosure, claimed to be void, without tendering the amount of the mortgage debt, less the rents and profits.
Error from Douglas county.
G. W. Shields, for plaintiff.
W. J. Connell, for defendant.
This is an action of ejectment, brought by the plaintiff against the defendant, to recover the possession of lots 6 and 7, in block 233, in the city of Omaha. On the trial of the cause in the court below, a verdict was returned in favor of the defendant, upon which judgment was rendered.
The testimony shows that in October, 1867, one Emma Williams, who then owned said lots, executed to the defendant a promissory note in the sum of $1,000, and on May 1, 1868, a second note in the sum of $600, and to secure the payment of said notes executed two mortgages upon the lots in question; that afterwards said Emma Williams conveyed her interest in said lots to one Eliza Whalen; that in 1876 the defendant brought an action against Emma Williams and Eliza Whalen to foreclose said mortgages. Service was had by publication, and a decree of foreclosure and sale rendered, a sale had and confirmed, and a deed made to the purchaser.
The plaintiffs claim that said foreclosure proceedings were void because the affidavit for publication was insufficient. The affidavit was as follows:
“STATE OF NEBRASKA___IN DISTRICT COURT, DOUGLAS COUNTY.
State of Nebraska, Douglas County--ss.: Byron Reed, being first duly sworn, says he is agent for the plaintiff in the above-entitled action, who is now absent from said Douglas county; that on the twenty-ninth day of August, A. D. 1876, the said plaintiff commenced his civil action in said district court for Douglas county, Nebraska, by filing herein his petition against the defendants above named, praying that certain lands situate in Douglas county, and in said petition particularly described, may be decreed to be sold to satisfy certain mortgages given by the said Emma Williams to said plaintiff to secure the payment of a certain sum of money therein named, and the said Emma Williams has since conveyed said premises to the said Eliza Whalen; and affiant further says that service of a summons cannot be made upon said Emma Williams and Eliza Whalen within said state of Nebraska, and that this affidavit is made for the purpose of obtaining service upon them by publication,--this case being one of those mentioned in section 77 of the Code of Civil Procedure of the General Statutes of Nebraska, to-wit, being for the sale of real property under a mortgage; and further affiant saith not.
BYRON REED.
Subscribed in my presence, and sworn to before me, this twenty-ninth day of August, A. D. 1876.
WM. H. IJAMS, Clerk.”
Section 78 of the Code of Civil Procedure provides that,
Section 77 provides that “service may be made by publication in either of the following cases: First,...
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Goore v. Goore
...expressed is supported by the cases of Bogle v. Gordon, 39 Kan. 31, 17 P. 857, and Fulton v. Levy, 21 Neb. 478, 32 N.W. 307.' In Fulton v. Levy, supra, the court 'It will be seen that this view of the question conforms to the requirements of section 78. It states the nature of the cause of ......