Hurley v. Cox

CourtSupreme Court of Nebraska
Writing for the CourtMAXWELL
Citation9 Neb. 230,2 N.W. 705
Decision Date01 January 1879
PartiesWILLIAM HURLEY, PLAINTIFF IN ERROR, v. WILLIAM COX AND OTHERS, DEFENDANTS IN ERROR.

9 Neb. 230
2 N.W. 705

WILLIAM HURLEY, PLAINTIFF IN ERROR,
v.
WILLIAM COX AND OTHERS, DEFENDANTS IN ERROR.

Supreme Court of Nebraska.

Filed, 1879.


Error from the district court for Burt county.

[2 N.W. 705]

Carrigan & Osborn and J. S. Monk, for plaintiff in error.

Watson Parish, for defendants in error.


MAXWELL, C. J.

On the nineteenth day of October, 1872, the plaintiff commenced an action in the district court of Burt county, against William Cox and Ashley, to foreclose a mortgage upon certain lands in that county. On the fifth day of June, 1874, an amended petition was filed by the plaintiff, bringing in E. D. Canfield as a party defendant. The action is founded upon a mortgage executed by the defendant Cox in the year 1858 upon certain lands in Burt county, and alleges that no part of the sum due upon the mortgage has been paid, and that no proceedings have been had at law for the recovery of the same. The petition also alleges that the defendants Ashley and Canfield hold tax deeds upon portions of said lands which are prima facie evidence of title, but it is claimed the proceedings upon which they are based are irregular and void, and that said deeds confer no title. The plaintiff prays for a decree of foreclosure and sale of the mortgaged premises, and that the defendants Ashley and Canfield may be required to assert their title to said premises, * * * * that it may be declared void, etc. The defendants Ashley and Canfield demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained and the cause dismissed. The cause is brought into this court by petition in error. A copy of the

[2 N.W. 706]

note is set out in the petition, in which it appears that it became due on the twenty-third day of August, 1859, being dated at Omaha and payable at the office of Cassidy & Tist, in Council Bluffs, Iowa.

The proviso to section 17 of the Code provides that “the absence from the state, death or disabilty of a non-resident, save the cases mentioned in the section, shall not operate to extend the period within which actions in rem shall be commenced by and against such non-resident or his representatives.” This case is not within the exception, and this court has held in a number of instances that the foreclosure of a mortgage was a proceeding in rem. Rector v. Rotten, 3 Neb. 177; Peters v. Dunnells, 5 Neb. 460; Hurley v. Estes, 6 Neb. 386. The cases without an exception, as far as I...

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15 practice notes
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • 10 Abril 1912
    ...559, 49 S. W. 328, 51 S. W. 821;Carson v. Cochran, 51 Minn. 67, 53 N. W. 1130;Duty v. Graham, 12 Tex. 427, 62 Am. Dec. 534;Hurley v. Cox, 9 Neb. 230, 2 N. W. 705;Hill v. Gregory, 64 Ark. 317, 42 S. W. 408;Law v. Spence, 5 Idaho, 244, 48 Pac. 282;Harding v. Durand, 138 Ill. 515, 28 N. E. 948......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • 10 Abril 1912
    ...(49 S.W. 328, 51 S.W. 821); Carson v. Cochran, 52 Minn. 67 (53 N.W. 1130); Duty v. Graham, 12 Tex. 427 (62 Am. Dec. 534); Hurley v. Cox, 9 Neb. 230 (2 N.W. 705); Hill v. Gregory, 64 Ark. 317 (42 S.W. 408); Law v. Spence, 5 Idaho 244 (48 P. 282); Harding v. Durand, 138 Ill. 515 (28 N.E. 948)......
  • Stryker v. Rasch, 2193
    • United States
    • United States State Supreme Court of Wyoming
    • 22 Abril 1941
    ...31 Utah 203, 87 P. 674; Brandenstein v. Johnson, 140 Cal. 29, 73 P. 744; Kiel v. Staber, (Tex. Civ. App.) 116 S.W.2d 809; Hurley v. Cox, 9 Neb. 230, 2 N.W. 705. (Contra: Gibson v. Ast, 77 Kan. 458, 94 P. 801.) In most of these cases, adverse possession was claimed by the person setting up t......
  • Eayrs v. Nason, 7841
    • United States
    • Supreme Court of Nebraska
    • 3 Marzo 1898
    ...the petition on the ground that the facts therein averred do not state a cause of action. (Peters v. Dunnells, 5 Neb. 460; Hurley v. Cox, 9 Neb. 230, 2 N.W. 705; Aultman v. Cole, 16 Neb. 4, 19 N.W. 783.) Since a defendant may avail himself at any stage of the trial of the fact that the peti......
  • Request a trial to view additional results
15 cases
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • 10 Abril 1912
    ...559, 49 S. W. 328, 51 S. W. 821;Carson v. Cochran, 51 Minn. 67, 53 N. W. 1130;Duty v. Graham, 12 Tex. 427, 62 Am. Dec. 534;Hurley v. Cox, 9 Neb. 230, 2 N. W. 705;Hill v. Gregory, 64 Ark. 317, 42 S. W. 408;Law v. Spence, 5 Idaho, 244, 48 Pac. 282;Harding v. Durand, 138 Ill. 515, 28 N. E. 948......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • 10 Abril 1912
    ...(49 S.W. 328, 51 S.W. 821); Carson v. Cochran, 52 Minn. 67 (53 N.W. 1130); Duty v. Graham, 12 Tex. 427 (62 Am. Dec. 534); Hurley v. Cox, 9 Neb. 230 (2 N.W. 705); Hill v. Gregory, 64 Ark. 317 (42 S.W. 408); Law v. Spence, 5 Idaho 244 (48 P. 282); Harding v. Durand, 138 Ill. 515 (28 N.E. 948)......
  • Stryker v. Rasch, 2193
    • United States
    • United States State Supreme Court of Wyoming
    • 22 Abril 1941
    ...31 Utah 203, 87 P. 674; Brandenstein v. Johnson, 140 Cal. 29, 73 P. 744; Kiel v. Staber, (Tex. Civ. App.) 116 S.W.2d 809; Hurley v. Cox, 9 Neb. 230, 2 N.W. 705. (Contra: Gibson v. Ast, 77 Kan. 458, 94 P. 801.) In most of these cases, adverse possession was claimed by the person setting up t......
  • Eayrs v. Nason, 7841
    • United States
    • Supreme Court of Nebraska
    • 3 Marzo 1898
    ...the petition on the ground that the facts therein averred do not state a cause of action. (Peters v. Dunnells, 5 Neb. 460; Hurley v. Cox, 9 Neb. 230, 2 N.W. 705; Aultman v. Cole, 16 Neb. 4, 19 N.W. 783.) Since a defendant may avail himself at any stage of the trial of the fact that the peti......
  • Request a trial to view additional results

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