Omaha Sav. Bank v. Simeral

CourtSupreme Court of Nebraska
Writing for the CourtNORVAL
Citation86 N.W. 470,61 Neb. 741
PartiesOMAHA SAV. BANK v. SIMERAL ET AL.
Decision Date22 May 1901

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.

[86 N.W. 470]

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.

[86 N.W. 471]

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...

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7 practice notes
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • April 10, 1912
    ...W. 418;Richmond v. Aiken, 25 Vt. 324;Booker v. Armstrong, 93 Mo. 49, 4 S. W. 727;Long v. Long, 141 Mo. 352, 44 S. W. 341;Bank v. Simeral, 61 Neb. 741, 86 N. W. 470;Kerr v. Lydecker, 51 Ohio St. 240, 37 N. E. 267, 23 L. R. A. 842;Colton v. Depew, 60 N. J. Eq. 454, 46 Atl. 728, 83 Am. St. Rep......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • April 10, 1912
    ...Richmond v. Aiken, 25 Vt. 324; Booker v. Armstrong, 93 Mo. 49 (4 S.W. 727); Long v. Long, 141 Mo. 352 (44 S.W. 341); Bank v. Simeral, 61 Neb. 741 (86 N.W. 470); Kerr v. Lydecker, 51 Ohio St. 240 (37 N.E. 267, 23 L. R. A. 842); Colton v. Depew, 60 N.J.Eq. 454 (46 A. 728, 83 Am. St. Rep. 650)......
  • Frew v. Scoular, No. 18734.
    • United States
    • Supreme Court of Nebraska
    • April 14, 1917
    ...Scotch sureties under their very long-winded statute of limitations. In Dwire v. Gentry, supra, the case of Omaha Savings Bank v. Simeral, 61 Neb. 741, 86 N. W. 470, was relied upon. Mr. Justice Letton, referring to the last-named case, quotes from it: “No payments were made on the note by ......
  • Doty v. W. Gate Bank, Inc., No. S–14–1060.
    • United States
    • Supreme Court of Nebraska
    • February 19, 2016
    ...note 20, 285 Neb. at 753, 829 N.W.2d at 682 (quoting Department of Banking v. Keeley, supra note 40 ).42 Omaha Savings Bank v. Simeral, 61 Neb. 741, 743, 86 N.W. 470, 471 (1901).43 J.I. Case Credit Corp. v. Thompson, 187 Neb. 626, 193 N.W.2d 283 (1971).44 31 Samuel Williston, A Treatise on ......
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7 cases
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • April 10, 1912
    ...W. 418;Richmond v. Aiken, 25 Vt. 324;Booker v. Armstrong, 93 Mo. 49, 4 S. W. 727;Long v. Long, 141 Mo. 352, 44 S. W. 341;Bank v. Simeral, 61 Neb. 741, 86 N. W. 470;Kerr v. Lydecker, 51 Ohio St. 240, 37 N. E. 267, 23 L. R. A. 842;Colton v. Depew, 60 N. J. Eq. 454, 46 Atl. 728, 83 Am. St. Rep......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • April 10, 1912
    ...Richmond v. Aiken, 25 Vt. 324; Booker v. Armstrong, 93 Mo. 49 (4 S.W. 727); Long v. Long, 141 Mo. 352 (44 S.W. 341); Bank v. Simeral, 61 Neb. 741 (86 N.W. 470); Kerr v. Lydecker, 51 Ohio St. 240 (37 N.E. 267, 23 L. R. A. 842); Colton v. Depew, 60 N.J.Eq. 454 (46 A. 728, 83 Am. St. Rep. 650)......
  • Frew v. Scoular, No. 18734.
    • United States
    • Supreme Court of Nebraska
    • April 14, 1917
    ...Scotch sureties under their very long-winded statute of limitations. In Dwire v. Gentry, supra, the case of Omaha Savings Bank v. Simeral, 61 Neb. 741, 86 N. W. 470, was relied upon. Mr. Justice Letton, referring to the last-named case, quotes from it: “No payments were made on the note by ......
  • Doty v. W. Gate Bank, Inc., No. S–14–1060.
    • United States
    • Supreme Court of Nebraska
    • February 19, 2016
    ...note 20, 285 Neb. at 753, 829 N.W.2d at 682 (quoting Department of Banking v. Keeley, supra note 40 ).42 Omaha Savings Bank v. Simeral, 61 Neb. 741, 743, 86 N.W. 470, 471 (1901).43 J.I. Case Credit Corp. v. Thompson, 187 Neb. 626, 193 N.W.2d 283 (1971).44 31 Samuel Williston, A Treatise on ......
  • Request a trial to view additional results

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