Merrill v. Wright
| Decision Date | 08 April 1898 |
| Citation | 74 N.W. 955,54 Neb. 517 |
| Parties | MERRILL v. WRIGHT ET AL. |
| Court | Nebraska Supreme Court |
Where the original petition for the foreclosure of tax liens upon property purchased at sales for taxes was defective merely in the omission of averments of the levy and assessment of such taxes, the filing of an amended petition, whereby such averments were supplied, held not to be the commencement of the action in such sense as meanwhile to permit the running of the statute of limitations.
Appeal from district court, Douglas county; Ambrose, Judge.
Action by H. A. Merrill against Joanna C. Wright and others to foreclose a tax lien. Judgment for defendants. Plaintiff appeals. Reversed.H. W. Pennock, for appellant.
Guy R. C. Read, W. D. Beckett, and Andrew Bevins, for appellees.
There has already been an opinion filed in this case in which the general nature of the action was fully described. There was a reversal of the judgment in favor of Merrill because in the petition there was neither averment nor proof of the existence of a levy or assessment of the taxes for the amount of which Merrill had obtained judgment. Merrill v. Wright, 41 Neb. 351, 59 N. W. 787. After the cause had been remanded to the district court of Douglas county for further proceedings, leave was given to amend the petition, and on December 6, 1894, there was filed an amended petition, in which were contained averments of a due levy and assessment of taxes. To this amended petition the defendants answered that the filing of this amended petition was the commencement of the action, and that, as the sales upon which plaintiff founded the right to a foreclosure of tax liens had taken place more than four years before such alleged commencement of the action, plaintiff's rights were barred by the statute of limitations. It seems that after issues had been joined subsequent to the filing of the amended petition the cause came on for trial, and that an objection to the introduction of evidence, or to something else of the nature of which the record is silent, but by which was invoked the statute of limitations, was sustained, and the action was dismissed by the court. The plaintiff alone has appealed, and we have so far, and hereafter shall, confine ourselves strictly to a consideration of the complaint of that litigant.
It is insisted by appellees that this court in Merrill v. Wright, supra, held, in effect, that the petition was a nullity. We do...
To continue reading
Request your trial