Gilbert v. Garber

• Decision Date: 18 June 1903
• Docket Number: 12,912
• Citation: 95 N.W. 1030,69 Neb. 419
• Parties: LAURA A. GILBERT, APPELLEE, v. CATHERINE A. GARBER ET AL., APPELLANTS, IMPLEADED WITH NEBRASKA & KANSAS FARM LOAN COMPANY ET AL., APPELLEES
• Court: Nebraska Supreme Court

95 N.W. 1030

69 Neb. 419

LAURA A. GILBERT, APPELLEE, v. CATHERINE A. GARBER ET AL., APPELLANTS, IMPLEADED WITH NEBRASKA & KANSAS FARM LOAN COMPANY ET AL., APPELLEES

No. 12,912

Supreme Court of Nebraska

June 18, 1903

APPEAL from the district court for Webster county: ED L. ADAMS DISTRICT JUDGE. Affirmed.

AFFIRMED.

Lorenzo W. Billingsley, Robert J. Greene and Richard H. Hagelin, for appellants.

Bernard S. McNeny and A. H. Kidd, contra.

HASTINGS C. AMES and OLDHAM, CC., concur.

OPINION

HASTINGS, C.

This case comes here upon a second appeal. The present appellee brought it here before, and a finding that her mortgage had been paid was reversed, because not sustained by sufficient evidence. The case then went back, on mandate, for further proceedings in the district court. There, the defendants Catherine A. Garber and Joseph Garber, filed a supplemental answer. Their original answer in the case had alleged, that the mortgage, which was payable to James H. Tallman, a member of the firm of G. W. Moore & Company, of Hartford, Connecticut, was for money advanced by that firm; that the Nebraska & Kansas Farm Loan Company was the regular agent of that firm, and loaned for it a large amount of money, upon numerous mortgages, in the vicinity of Red Cloud, Nebraska. It alleged a payment to the Nebraska & Kansas Farm Loan Company; set up what purported to be the facts as to the relation between the holder of the mortgage and the loan company, and that the mortgage was wholly paid and discharged.

The new answer set out that, after the filing of plaintiff's original petition, defendant Slocum filed an answer and cross-petition; that, subsequently, defendants answered to it; that June 18, 1896, plaintiff filed reply and an answer to Slocum's cross-petition; that trial was had January 14, 1898, upon plaintiff's petition, the answers and defaults of defendants, and the evidence. Judgment of dismissal, and for costs, was entered in favor of defendants and against plaintiff; that the term of court adjourned next day; that bill of exceptions was not settled within the time allowed by law and that, on May 10, following, trial was had upon the cross-petition of the defendant, Slocum, the answer and reply of plaintiff, the answer of the defendants, Garber, and the defaults of the other parties; that the issues were found in favor of Slocum, and against plaintiff and the other defendants, and a decree entered.

This decree is set out in the answer, and recites that plaintiff did not appear; it finds that the other defendants had entered their appearance to Slocum's cross-petition, but failed to answer or demur; it finds that the mortgage was executed to Slocum by the defendants, Garber, and was a first lien; finds the amount due on it, decrees a sale and a complete foreclosure against all the defendants, unless payment should be made within twenty days.

The supplemental answer alleges, that the defendants, Garber, paid this decree, relying upon this finding that it was a first lien upon the land; the supplemental answer also alleges the agency of the loan company for G. W. Moore & Company and for the plaintiff; alleges payment made to the loan company and a discharge of plaintiff's mortgage thereby; also, alleges payment to Tallman by this means; that no assignment had ever been filed of record and that Tallman was the ostensible owner; the supplemental answer also alleges that the acknowledgment of the mortgage was taken by and before J. A. Tulleys, notary public; that he was secretary of, and beneficially interested in, the loan company, and was defendant's agent, and, also agent for Tallman, the mortgagee, and of G. W. Moore & Company, and was in the employ of Tallman, G. W. Moore & Company and the Nebraska & Kansas Farm Loan Company, and was never employed as notary by defendants; that his compensation depended upon his procuring the execution of the mortgage, and he had no right or authority to take the acknowledgment of it. The supplemental answer also alleges that there was no competent witness to the mortgage; that Shirey, the witness, was interested, in substantially the same manner as Tulleys, in the mortgage, being a stockholder and officer, or related to officers of the loan company and that the premises were the family homestead of the defendants, Garber. There was also an allegation that plaintiff was not the real party in interest, as well as a denial of her ownership.

It will thus be seen that the defenses relied upon to this mortgage, are:

(1.) Res adjudicata, by reason of the decree in favor of Slocum, which was not appealed from, rendered in May, 1898, after the former judgment against the plaintiff dismissing her out of the action.

(2.) The payment claimed to have been made to the Nebraska & Kansas Farm Loan Company, as to which the evidence was, in the former hearing, held insufficient.

(3.) That the premises are a homestead and the mortgage was never lawfully acknowledged.

(4.) That while the premises are a homestead the mortgage was not witnessed by any one competent to serve in that capacity.

(5.) That plaintiff is not the real party in interest.

These defenses it would be as well to take up seriatim. So far as the first is concerned, the arguments advanced in support of it cover 16 pages of the brief, and they rest on the proposition that the proceedings in favor of Slocum, by which the decree of May 10 was obtained, were in plaintiff's constructive presence, and are an adjudication against her. A suggestion is made, also, that they were in the nature of proceedings in rem and binding against the world. The latter position hardly seems tenable. At all events the doctrine has not yet been established, that proceedings in foreclosure of a mortgage are proceedings in rem, in such a sense as to be binding upon one not directly a party to the action. Cram v. Cottrell, 48 Neb. 646, 67 N.W. 452.

The real question, as to this branch of the case, seems to be simply: Was the plaintiff a party to these proceedings of May 10, and, if so, is she concluded by them? It seems clear that such is not the case. By a final decree of January 1, 1898, the plaintiff had been dismissed out of the action. All of these defendants were parties to that decree and its finding, that her...