Miller v. Nicodemus

• Decision Date: 22 March 1899
• Citation: 58 Neb. 352,78 N.W. 618
• Parties: MILLER v. NICODEMUS ET AL.
• Court: Nebraska Supreme Court

58 Neb. 352

78 N.W. 618

MILLER

v.NICODEMUS ET AL.

Supreme Court of Nebraska.

March 22, 1899.

Syllabus by the Court.

1. In a suit to foreclose an ordinary realestate mortgage, an essential averment of the petition is that no proceedings at law have been had or commenced for the collection of the mortgage debt, or any part thereof.

2. In such suit, when such averment is put at issue, the averment must be proved, or the decree will lack evidence to support it.

3. When a litigant files an amended pleading, the averments of which are inconsistent with the averments of his original pleading, the original is evidence in the case as an admission of the litigant contrary to his claim in the amended pleading.

4. Such original pleading is not conclusive evidence, but competent, and to be given such weight as the trior of fact deems it entitled to.

5. Admissions made by a litigant in his pleading in a suit are competent evidence against those who subsequently come into the suit as his successors in interest to the matter in litigation.

Appeal from district court, Saunders county; Sedgwick, Judge.

Action by Charlotte M. Miller against Mary H. Nicodemus and others. Judgment for plaintiff. Defendants appeal. Affirmed.Good & Good, for appellants.

H. Gilkeson, for appellee.

RAGAN, C.

To the district court of Saunders county, Charlotte M. Miller brought suit against Mary H. Nicodemus, her husband, and others, for the purpose of foreclosing an ordinary real-estate mortgage executed by the defendants Nicodemus. The petition of Miller contained the averment that no proceedings at law had been had or commenced for the recovery of the debt secured by the mortgage sought to be foreclosed, or for any part thereof. The defendants Nicodemus filed an answer to this petition of Miller, in which they admitted all its averments to be true. After this answer was filed, Nicodemus, the husband, died; and the action was revived against his minor heirs, for whom a guardian ad litem was appointed. The latter answered for his wards, denying each and every allegation in Miller's petition. The widow Nicodemus filed, by leave of court, an amended answer, in which she denied all the allegations in Miller's petition. The trial resulted in a decree in favor of Charlotte Miller, and the widow Nicodemus and the minor heirs of Nicodemus, deceased, have appealed.

1. The sole argument is that the decree is not supported by sufficient competent evidence. It is not claimed that the mortgage sought to be foreclosed was not executed and delivered by Nicodemus and wife, nor that the mortgage debt is not due and unpaid, nor is there any dispute as to the amount due thereon; but the contention is that the averment in Miller's petition that no proceedings at law had ever been had or commenced for the collection of the mortgage debt, etc., was not proved. On the trial, Miller introduced in evidence the answer filed in the case by Nicodemus and wife, in which, as already stated, they admitted the truth of every averment in Miller's petition. If this answer was competent evidence against each of the appellants, the finding of the court that the averment in Miller's petition that no proceedings at law had been had or commenced for the collection of the mortgage debt was true is supported by sufficient evidence, and the decree must be affirmed. The sole question therefore is, was this answer competent evidence against the appellants and each of them? The averment in Miller's petition that no proceedings at law had been had or commenced...