Omaha Loan & Trust Co. Sav. Bank v. Knight

• Decision Date: 19 January 1897
• Citation: 69 N.W. 933,50 Neb. 342
• Parties: OMAHA LOAN & TRUST CO. SAV. BANK v. KNIGHT ET AL.
• Court: Nebraska Supreme Court

50 Neb. 342

69 N.W. 933

OMAHA LOAN & TRUST CO. SAV. BANK

v.KNIGHT ET AL.

Supreme Court of Nebraska.

Jan. 19, 1897.

Syllabus by the Court.

1. A judgment or decree, from which no appeal has been taken within the statutory time, will not be reviewed by the appellate court.

2. A general appearance by a defendant in a cause is a waiver of all defects in the issuance and service of the summons, and gives the court jurisdiction.

Appeal from district court, Douglas county; Ferguson, Judge.

Action by the Omaha Loan & Trust Company Savings Bank against Benjamin P. Knight and others. Judgment for plaintiff. From a deficiency judgment against Adeline F. Knight, she appeals. Affirmed.

John L. Carr, for appellant.

Francis A. Brogan, for appellee.

POST, C. J.

On the 5th day of November, 1892, a decree of foreclosure of a real-estate mortgage was entered in the cause in the court below, it finding that there was due the plaintiff from Benjamin P. Knight and Adeline F. Knight the sum of $2,671.86, and directing that the mortgaged premises be sold to satisfy the same unless said sum should be paid within 20 days from that date, and “that, if there be any balance remaining due the plaintiff after said sale, a judgment shall be rendered in favor of the plaintiff and against the defendants Benjamin P. Knight and Adeline F. Knight for the amount thereof.” Subsequently an order of sale was issued, and the property sold thereunder, which sale was duly confirmed by the court. Thereafter, on April 4, 1893, plaintiff filed a motion for a deficiency judgment, and notice of the time and place of the hearing thereof was served upon the defendants by delivering to Benjamin P. Knight personally a true and certified copy of the notice and motion, and by leaving a like copy of each for Adeline F. Knight at her usual place of residence in Douglas county. Pending the hearing of this motion, Mrs. Knight filed a petition to modify the said decree of foreclosure so far as it found that she was liable for a judgment for any deficiency there should be after the sale of the property. A deficiency judgment was rendered against Benjamin P. Knight on April 27, 1893, and the motion for a deficiency judgment against Mrs. Knight was continued to await the hearing of her application to modify the decree. At the September, 1893, term of the court, to wit, on November 23, 1893, the petition to modify the decree was denied, and a deficiency judgment was rendered against Adeline F. Knight for $920.08. Afterwards, and at the February, 1894, term, a motion was filed by her to set aside the deficiency judgment rendered at the preceding term, which motion was denied on March 27, 1894. The transcript on appeal was filed in this court on the 6th day of June, 1894.

Most of the questions argued in the brief of appellant are based upon alleged errors in the cause...