Merchants' Sav. Bank of Providence v. Noll

• Decision Date: 16 February 1897
• Citation: 50 Neb. 615,70 N.W. 247
• Parties: MERCHANTS' SAV. BANK OF PROVIDENCE v. NOLL ET AL.
• Court: Nebraska Supreme Court

50 Neb. 615

70 N.W. 247

MERCHANTS' SAV. BANK OF PROVIDENCE

v.NOLL ET AL.

Supreme Court of Nebraska.

Feb. 16, 1897.

Syllabus by the Court.

1. A defendant, by a general appearance in an action, thereby waives the issuance and service of summons therein.

2. A decree will not be reversed by this court on account of error, unless prejudicial to the complaining party.

3. The record of the trial court, for the purpose of all appellate proceedings, when certified as required by law, imports absolute verity. Worley v. Shong, 53 N. W. 72, 35 Neb. 311.

4. In such case, if the record is incorrect or incomplete, the remedy is, by appropriate proceedings, to secure a correction thereof in the lower court. Trust Co. v. Hogeboom, 66 N. W. 14, 47 Neb. 9.

Appeal from district court, Dawes county; Bartow, Judge.

Action by the Merchants' Saving Bank of Providence against Hattie A. Noll, W. F. Thomas, and others. Judgment for plaintiff, and W. F. Thomas appeals. Affirmed.Allen G. Fisher, for appellant.

Albert W. Crites, for appellee.

POST, C. J.

This was a proceeding by the appellee, the Merchants' Savings Bank of Providence, R. I., in the district court for Dawes county, to foreclose a certain mortgage executed by the defendants Hattie A. Noll and John Noll to the Western Farm Mortgage Company. The appellant, Thomas, as assignee of the Sioux City Dry-Goods Company, was made a party defendant, and answered, setting up a judgment against one O'Connor, to whom the mortgaged premises had been conveyed by the Nolls. There was a decree adjudging the plaintiff's mortgage to be a first lien upon the premises therein described, and awarding to the appellant a third lien thereon. Subsequently, and after the decree had been entered at large upon the records of the court, the appellant moved “to strike from the records the last clause in the recorded decree, for the reasons: (1) There is not of record, nor was there ever made by the court, any order for a decree of foreclosure; (2) there is no warrant of law, nor any statute giving any authority, for the court to enter the order giving the plaintiff possession of the premises in controversy; (3) there has not been filed in this case any evidence upon which the decree could be founded; (4) plaintiff has not filed any note or mortgage as required by statute for the foundation of the decree.” From an order overruling said motion, as well as from the original decree, an appeal is prosecuted to this court.

The first proposition stated in the brief of appellant is that the decree is erroneous for the reason that there was no service upon the defendant Hattie A. Noll. It is a sufficient answer to that contention that the defendant named entered her voluntary appearance, thereby waiving the issuing and...