Gillilan v. Murphy

• Decision Date: 02 December 1896
• Citation: 49 Neb. 779,69 N.W. 98
• Parties: GILLILAN ET AL. v. MURPHY ET AL.
• Court: Nebraska Supreme Court

49 Neb. 779

69 N.W. 98

GILLILAN ET AL.

v.MURPHY ET AL.

Supreme Court of Nebraska.

Dec. 2, 1896.

Syllabus by the Court.

In a collateral proceeding, by which is attacked a deficiency judgment, as having been entered without notice of the pendency of the motion therefor, evidence cannot be considered which, in its nature, is merely contradictory of satisfactory proof of service submitted to the court by which the deficiency judgment was entered.

Appeal from district court, Lancaster county; Strode, Judge.

Action by John J. Gillilan and Aldridge D. Kitchen against Sydney V. Murphy and Sam McClay. Judgment for defendants, and plaintiffs appeal. Affirmed.W. B. Comstock and John P. Maule, for appellants.

Daniel F. Osgood, for appellees.

RYAN, C.

Mary J. Canfield executed two notes to A. D. Kitchen and John J. Gillilan. By indorsement in blank, Kitchen and Gillilan transferred these notes to Sydney V. Murphy. In a proceeding for the foreclosure of a mortgage securing said notes, the indorsers, as such, were made defendants in the district court of Lancaster county. There was a decree, which by Mary J. Canfield was stayed, conformably to the provisions of section 477b of the Code of Civil Procedure. After the expiration of the period of stay there was a sale of the mortgaged premises, followed by a deficiency judgment against Kitchen and Gillilan and Mary J. Canfield for the amount of the balance owing to Murphy. For the collection of this deficiency judgment an execution was issued and placed in the hands of the sheriff of Lancaster county. As sole plaintiffs Gillilan and Kitchen began this action, in which Murphy and Sheriff McClay were made defendants. Its object is, perhaps, most accurately stated by quoting the prayer of the petition, which was in this language: “The plaintiffs therefore pray that said defendants be enjoined from levying said execution upon the property of the plaintiffs, or from in any way acting upon the same, and that, upon the final hearing of this case, said judgment may be set aside and held for naught, and for such other and further relief as equity may require.” If this prayer had been granted, the deficiency judgment would have been, in effect, vacated, as well against Mary J. Canfield as against Gillilan and Kitchen. It is probable that the fact that Mary J. Canfield had availed herself of the benefit of a stay influenced the action of counsel in omitting to make her a party plaintiff. Whatever may be the...