Provident Life & Trust Co. v. Brunner
| Decision Date | 08 January 1903 |
| Citation | 4 Neb. [Unof.] 48,93 N.W. 144 |
| Court | Nebraska Supreme Court |
| Parties | PROVIDENT LIFE & TRUST CO. v. BRUNNER. |
OPINION TEXT STARTS HERE
Commissioners' opinion. Department No. 3. Error to district court, Douglas county; Estelle, Judge.
“Not to be officially reported.”
Action by the Provident Life & Trust Company against Thomas C. Brunner. Judgment for defendant, and plaintiff brings error. Reversed.George B. Lake and Hamilton & Maxwell, for plaintiff in error.
John O. Yeiser, for defendant in error.
On May 1, 1897, an action was begun to foreclose a mortgage upon real property which had been given to secure the payment of an indebtedness that fell due January 1, 1897. After a decree of foreclosure and a sale thereunder, and after a confirmation of the sale, the plaintiff applied to the court for, and obtained, leave to prosecute an action at law to recover a residue of the debt after the application thereon of the proceeds of the sale. A judgment was recovered by the defendant in this action, which was prosecuted pursuant to the permission so obtained, and the plaintiff prosecutes a petition in error to this court.
It is not disputed that there is an unpaid residue of the mortgage debt, and the only question presented here is whether it can be recovered by the proceedings above set forth. We think the answer has been given by this court, and in favor of the plaintiff in error, by the decisions in Thompson v. West, 59 Neb. 676, 82 N. W. 13, 49 L. R. A. 337;Patrick v. Bank (Neb.) 88 N. W. 183. We do not think it necessary to repeat or recapitulate the reasons adduced in those decisions. We may, however, add thereto our own opinion that section 848 of the Code, taken in connection with the other provisions of the title of which it is a part, is no more than a statute compelling election between two remedies, both of which existed prior to the adoption of the amendment, and neither of which has been taken away. Neither at the time the mortgage became due nor at the time the action for its foreclosure was begun was the amended statute in force or operative. At the time the suit was begun, therefore, the plaintiff was not required by law to make an exclusive choice of remedies, and there is no ground for a presumption that by beginning the action he intended to do so. He could not have foreseen the results of the litigation, nor could he have predicted how long the amendment, if already enacted, would remain unrepealed. At all events, it had not yet...
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