Montpelier Savings Bank and Trust Company v. Follett

• Decision Date: 09 April 1903
• Docket Number: 12,711
• Parties: MONTPELIER SAVINGS BANK AND TRUST COMPANY, APPELLEE v. FAY C. FOLLETT ET AL., APPELLANTS
• Court: Nebraska Supreme Court

94 N.W. 635

68 Neb. 416

MONTPELIER SAVINGS BANK AND TRUST COMPANY, APPELLEE v. FAY C. FOLLETT ET AL., APPELLANTS

No. 12,711

Supreme Court of Nebraska

April 9, 1903

APPEAL from the district court for Adams county: ED. L. ADAMS DISTRICT JUDGE. Affirmed.

AFFIRMED.

Addison S. Tibbets, George W. Tibbets and Charles F. Morey, for appellants.

William Gaslin, contra.

HASTINGS C. KIRKPATRICK and LOBINGIER, CC., concur.

OPINION

HASTINGS, C.

Appellants in this case, against whom a decree of foreclosure was rendered, set up four reasons why that decree should be reversed and one entered requiring the plaintiff and appellee to accept a deed of the mortgaged premises in full satisfaction of the mortgage debt:

First. That the petition makes an insufficient allegation as to a prior suit at law on which judgment was rendered for the debt secured by this mortgage, and execution issued and returned unsatisfied, in that the allegations fail to negative other proceedings to enforce that judgment.

The allegations in this behalf of the petition are that the plaintiff commenced an action in the district court of Douglas county February 1, 1900, against the grantee of the mortgaged premises, who had assumed the note, Fay C. Follett, and recovered judgment March 5, 1900, for $ 2,202.50 and $ 14.98 costs; that the transcript was taken to Adams county and execution issued there, and delivered to the sheriff and returned wholly unsatisfied; that plaintiff has been unable to find any property to satisfy his judgment, and has been compelled to resort to the foreclosure; that nothing has been collected, and the full amount of the mortgage note, coupon and interest is due; that the mortgaged premises have been conveyed to one Anna R. Brockell. There is no allegation that the defendant Follett resides in Adams county.

It is claimed by the appellee that the presumption that courts and officers act in good faith applies to the proceedings on this judgment. We do not exactly see the application. It is not a question of good faith in any one besides the plaintiff in transferring the proceedings to Adams county, and endeavoring there to collect the judgment.

It is objected there is no authority shown to issue execution in Adams county, and that the return of the sheriff in Adams county that he can find no property is not the return required by section 851 of the Code of Civil Procedure. The requirement of section 850 is simply that the petition shall state whether proceedings have been had at law for the recovery of the debt or any part thereof, and whether anything has been collected and paid. The allegations of the petition are sufficient in this respect; they show a judgment for the whole amount of the debt, and that nothing has been collected and paid.

With regard to the return of the execution, it is true that it is not in the precise words of the statute, in that it omits the clause "except the mortgaged premises." The allegations in the petition, however, are that the mortgaged premises had been transferred to the defendant Brockell, who does not appear to be in any other way holden for the payment of the debt. The mortgaged premises, therefore, could not properly be referred to in the return of the officer as being the property of the defendant Follett. The evidence discloses, and it is not denied, that in fact the defendant Follett lives in Adams county. Neither section 850 nor 851 seems to require any other or different allegations than are made in this petition, and we think it should be held to be sufficient.

The answer, after asserting the...