Lau v. Blomberg

Decision Date04 June 1902
Citation91 N.W. 206,3 Neb. [Unof.] 124
PartiesLAU v. BLOMBERG ET AL.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Commissioners' opinion. Department No. 1. Appeal from district court, Saunders county; Sornborger, Judge.

“Not to be officially reported.”

Action by Fredericke Lau against Johanna C. Blomberg and others. Judgment for defendants, and plaintiff appeals. Reversed.Willard E. Stewart and Good & Slama, for appellant.

L. E. Gruver, for appellees.

HASTINGS, C.

This is an appeal from a decree of the district court of Saunders county dismissing the plaintiff's claim for foreclosure of a mortgage on the ground that there have been fraudulent alterations in the note which the mortgage was given to secure, by the effacing of certain indorsements on the back of it. January 16, 1899, Charles J. Blomberg, deceased, prior to the commencement of this action, was indebted to Hans P. Lau in the sum of $949.96 for merchandise. He executed at that date to Lau a demand note for that amount, and a note for $400, together with a mortgage upon real estate in Saunders county to secure the latter, on which this action is brought. At the same time he made another note for $549.96 in Lau's favor. The two smaller notes were for the same indebtedness as the first. The $400 note, like both the others, bore interest at 10 per cent. per annum. It matured January 18, 1896. April 5, 1898, a petition to foreclose the mortgage securing the $400 note was filed in Saunders county by Helene Lau, as executrix. May 2, 1898, answer and cross petition of Anderson and Almquist, praying for a foreclosure of a mortgage on the same property given by Blomberg in their favor to secure $500 and interest from September 11, 1896, was filed in the same action. On May 17th trial was had on plaintiff's petition, and the answer of Anderson and Almquist, and the default of Johanna Blomberg, executrix, and of the heirs of C. J. Blomberg. A decree was entered foreclosing the plaintiff's mortgage for the sum of $537.85 as a first lien, and Anderson and Almquist's mortgage for $583 as a second lien, and ordering sale of the mortgaged premises. On the same date Johanna Blomberg, executrix, filed a request for stay. Sale was had on this decree in March, 1899, and the property bid in by Almquist and Anderson. April 14, 1899, Johanna Blomberg, Victor Anderson, and C. H. Almquist filed a petition to vacate the decree, setting out that Blomberg died early in 1897; that the defendants named had no personal knowledge regarding plaintiff's claim; that they made diligent inquiry, and were informed that nothing had been paid on the note; that the note introduced by plaintiff in evidence had shown no indorsements, and decree was entered for amount apparently due on it; that the defendant Johanna Blomberg, supposing the decree was correct, requested a stay of order of sale; that at the expiration of the stay Anderson and Almquist procured order of sale, and the property was sold to them March 28, 1899, for $700, which was its reasonable market value, and on that day they discovered, upon a close examination of the note, the fact that there were indorsements upon it aggregating $156.67, all made prior to March 14, 1896; that opaque paper was neatly pasted over the indorsements, and rendered them invisible to the naked eye in the ordinary course of business, and that thereby the note was materially altered and rendered void; that defendants had used diligence, but acquired no knowledge of such alterations prior to March 28, 1899, and asked that the decree be set aside. August 7, 1899, the default of Helene Lau, executrix, was entered to this petition, and a finding made, simply that defendants' petition should be sustained, and the decree set aside, and the decree was set aside. December 18, 1899, a decree was entered dismissing the action brought by Helene Lau, foreclosing Anderson and Almquist's mortgage, and directing its payment out of the proceeds of the sale already had, and that the remainder of such proceeds be paid to Johanna Blomberg. December 19th, Fredericke Lau appeared and objected to the jurisdiction of the court, and moved the court to set aside the decree of December 18th--First because she was the sole party in interest in the note and mortgage sued upon by Helene Lau, having such interest after the first decree, and before June 10, 1899; second, because no summons had ever been served upon her on the petition for new trial; and, third, asking the court to set aside the order confirming the sale of the premises for the same reasons. The decree of December 18th was set aside, and Fredericke Lau allowed to plead by January 1, 1900. Some time subsequently (the date not appearing in the record) a motion was made by the defendants Blomberg, Anderson, and Almquist to set aside this last action of the court, and on January 22, 1900, the order of December 19, 1899, was set aside. Fredericke Lau, residuary legatee, was substituted for Helene Lau as plaintiff. On the same day, Fredericke Lau filed her motion to vacate and set aside the decree of December 18, 1899--First, because neither she nor Helene Lau had had any notice of the pendency of the proceedings to obtain a new trial, or that any such new trial had been granted on August 7, 1899; second, because the decree of December 18th was rendered without any default being first taken; third, because the decree of December 18th was based upon the order of August 7, 1899, granting a new trial, which last was irregularly obtained, in that it was upon a petition filed after a decree of foreclosure, after stay taken, and the sale of the mortgaged premises, upon which petition no summons was issued until more than one year from date of the original decree, and no summons ever served on Fredericke Lau or Helene Lau; fourth, because plaintiff had a valid lien upon the mortgaged premises, which had merged in the first decree of foreclosure. On the same day Fredericke Lau, substituted as plaintiff, filed a “special pleading” denying the fraudulent alterations; setting out the facts as to her claim, death of H. P. Lau, appointment of Helene Lau as executrix, the instituting of the original foreclosure proceedings, obtaining the decree, request for stay præcipe order of sale by Anderson and Almquist, and sale of premises to them for $700; that they had paid no part of it; their petition in connection with Johanna Blomberg for new trial; that summons was issued May 5, 1899, returned “not served”; that on June 3d another summons was issued on that petition, which was delivered to the sheriff of Lancaster county June 9, 1899, and indorsed by him, “Served personally on Helene Lau, executrix,” and on June 11th mailed to defendants' attorney, and on June 20, 1899, long after its return day, filed in the clerk's office; that service of summons was not had upon the substituted plaintiff or upon Helene Lau; that the petitioners had full knowledge of the memorandum on the back of the $400 note at the time it was offered in evidence; that the items on the back of the note were properly credited upon the $949.96 note, to which the $400 note was merely collateral security; that the payments were all properly indorsed upon the $949.96 note; that the petition for the new trial was entirely insufficient to support the order entered upon it; that it contains no allegation of diligence; that the alleged discovery of the memoranda on the $400 note is immaterial, and would have been of no value, because they represented no payment on that note; asking that all subsequent proceedings be set aside, and the original decree be reinstated and carried into effect. This application was sustained to the extent that the judgment by default of December 18, 1899, was again vacated, and the case set for hearing upon its merits. The costs of the term were taxed to plaintiff, to which she excepted. April 14th trial was had upon this last petition of the plaintiff, answer of defendants, reply of plaintiff, and the evidence, and the court found for the defendants and against the plaintiff; found the facts as to the execution of the notes as above stated, and found that H. P. Lau, in his lifetime, or some one authorized by him, with the consent of C. J. Blomberg, in his lifetime, indorsed certain payments, to the amount of $156.62, on the $400 note; that these indorsements were covered with opaque yellow paper, so as to obliterate them; that this was done by Helene Lau or by H. P. Lau in his lifetime, or by their procurement, with intent to defraud; that the indorsements becamea part of the note; that their obliteration was a material alteration, and avoided the note and mortgage; and that no action would lie to foreclose the latter; and dismissing plaintiff's cause of action....

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4 cases
  • Ashton v. Blue River Power Company
    • United States
    • Nebraska Supreme Court
    • November 28, 1928
    ...the creditor may apply the money upon any debt of his debtor which he chooses." Lenzen v. Miller, 53 Neb. 137, 73 N.W. 460; Lau v. Blomberg, 91 N.W. 206, 3 Neb. Unoff. Indeed, "The weight of authority holds that the debtor must direct the application of his payment at or before the time of ......
  • Brothers v. Rogers
    • United States
    • Nebraska Supreme Court
    • October 22, 1910
    ... ... was held the indorser was not discharged. Herrick v ... Baldwin, 17 Minn. 209." The following ... additional instances in this state may be mentioned: Erasing ... indorsements of payments from the back of a note which had ... been indorsed by mistake. Lau v. Blomberg, 91 N.W ... 206, 3 Neb. Unoff. 124. Removing from a note the following ... words: "This note is given upon condition." ... Palmer & Orton v. Largent, 5 Neb. 223. Interlining ... the words: "Interest at 6 per cent. on notes remaining ... over a year." Thompson Co. v. Baldwin, ... 62 Neb. 530 ... ...
  • Skow v. Locks
    • United States
    • Nebraska Supreme Court
    • June 4, 1902
  • Fox v. Carman
    • United States
    • Nebraska Supreme Court
    • February 7, 1941
    ... ... as to the application of a credit, the same may be applied by ... the creditor on any indebtedness owing by the debtor to the ... creditor is applicable in this case. Lenzen v ... Miller, 53 Neb. 137, 73 N.W. 460; Lau v ... Blomberg, 3 Neb. Unoff. 124, 91 N.W. 206; State v ... Security State Bank, ... ...

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