Omaha Sav. Bank v. Simeral

• Citation: 86 N.W. 470,61 Neb. 741
• Parties: OMAHA SAV. BANK v. SIMERAL ET AL.
• Decision Date: 22 May 1901
• Court: Supreme Court of Nebraska

61 Neb. 741

86 N.W. 470

OMAHA SAV. BANK

v.SIMERAL ET AL.

Supreme Court of Nebraska.

May 22, 1901.

Syllabus by the Court.

A promissory note is barred after five years from its maturity, though the same is secured by a real-estate mortgage, and the statute of limitations is a complete defense to the recovery of a personal judgment upon the note against a maker other than the mortgagor.

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

Action by the Omaha Savings Bank against Edward W. Simeral and others. Judgment for plaintiff, and James J. Brown appeals. Affirmed.G. W. Cooper and W. W. Morsman, for appellant.

Crofoot & Scott, for appellee bank.

Wm. A. Redick, for other appellees.

NORVAL, C. J.

Suit by Omaha Savings Bank against E. W. Simeral to foreclose a real-estate mortgage. J. J. Brown, having a second mortgage upon the premises, was made a party defendant, who, on August 22, 1896, filed a cross petition in said cause, setting up a mortgage given by Simeral to secure the payment of a promissory note for $1,000 given by him and one John I. Redick, dated December 18, 1886, and payable one year thereafter, and praying the foreclosure of said last-mentioned mortgage. To said cross petition Redick was made a party defendant, the purpose being to secure a deficiency judgment against him. Summons was issued and served upon Redick, who appeared and filed answer to the cross petition, alleging, in effect, that he signed the note as surety for Simeral; that the payments indorsed upon the note were made by the latter on his own behalf, without Redick's authority, knowledge, or consent; that on October 12, 1892, Brown, upon sufficient consideration, extended the time of payment of the note said mortgage was given to secure to December 12, 1892, without the knowledge or consent of Redick, whereby the latter was released and discharged as surety; that “the cause of action of said J. J. Brown did not accrue against this defendant within five years next before the filing of the cross petition in this case, and said claim is barred by the statute of limitations.” The reply consisted of a general denial. The court found the issues in favor of Redick as to both of his defenses, and a decree was entered foreclosing the mortgage of Brown, as well as that of plaintiff, and dismissing the cross petition as to the defendant Redick. Brown appeals.

We shall consider the defense of Redick only, relative to the statute of limitations. Section 849 of the Code of Civil Procedure provides that: “If the mortgage debt be secured by the obligation or other evidence of debt of any other person besides the mortgagor, the complainant may make such person a party to the petition, and the court may decree payment of the balance of such debt remaining unsatisfied after a sale of the mortgaged premises, as well against such other person as the mortgagor, and may enforce such decree as in other cases.” It is argued that under such section Brown had the same time to make Redick a party defendant for the purpose of obtaining a deficiency judgment against him that he had against Simeral to foreclose the mortgage in question. To the proposition we are unable to assent. The statute quoted is not one fixing the limitation of actions like the present one. Another statute designates 10 years as the period within which a suit to foreclose a mortgage must be brought. Code Civ. Proc. § 6. Still another statute designates five years as the time within which an action upon a promissory note shall be instituted. Section 10. The statute quoted above, it is true, permits a deficiency judgment to be rendered against the mortgagor and other persons liable for the debt, in the suit to foreclose. The object of this is to prevent a...