Robertson v. Brooks

• Decision Date: 18 September 1902
• Citation: 91 N.W. 709,65 Neb. 799
• Parties: ROBERTSON v. BROOKS ET AL.
• Court: Nebraska Supreme Court

65 Neb. 799

91 N.W. 709

ROBERTSON

v.BROOKS ET AL.

Supreme Court of Nebraska.

Sept. 18, 1902.

Syllabus by the Court.

1. On foreclosure of a first mortgage a second mortgagee was made a party, and served by publication only. She did not appear in the action, and the decree barred her equity of redemption. On a sale under the decree there remained a surplus after paying the costs and the amount found due on the first mortgage. Held, following Moss v. Robertson, 77 N. W. 403, 56 Neb. 744, that the lien of the second mortgage was transferred from the land to the surplus, and that the holder of the second mortgage was entitled to such surplus as against the owner of the equity of redemption.

2. Under the facts above stated, while the second mortgagee had a lien on the surplus, her right to demand possession thereof did not accrue until her mortgage was foreclosed and the amount due thereon judicially determined, and the statute of limitations would not commence to run in favor of those who had wrongfully converted the fund until such foreclosure was had.

Commissioners' opinion. Department No. 3. Error to district court, Pawnee county; Letton, Judge.

Action by Belle Robertson against Joseph B. Brooks and others. Judgment in favor of plaintiff against one of the defendants by default and in favor of the other defendants, and plaintiff brings error. Reversed.John B. Raper and Lindsay & Raper, for plaintiff in error.

Story & Story, for defendants in error.

DUFFIE, C.

The plaintiff in error brought this action in the district court of Pawnee county to recover from Joseph B. Brooks, clerk of the district court of said county, and the other defendants, certain moneys paid to Brooks by the sheriff, being the surplus arising from a sale of real estate made on mortgage foreclosure, and upon which the plaintiff had a lien by virtue of a second mortgage. Brooks, the clerk, paid the money to Story Bros., attorneys for the defendant Moss, the owner of the equity of redemption of the mortgaged premises, and these attorneys paid over the money to their client. Moss made default, and judgment was entered against him for the full amount claimed. Brooks and Story Bros. answered, setting up, among other defenses, the statute of limitations, and judgment was entered in their favor dismissing the plaintiff's petition. The plaintiff filed a motion for a new trial, which the uncontradicted evidence discloses was filed with the clerk at 4:30 o'clock on the afternoon of June 22, 1900, and the same evidence discloses that the court had adjourned at 1 o'clock p. m. of the same day. A motion was made to strike the motion for a new trial from the files, which was overruled by the court, to which the defendants took an exception, and prepared and had allowed a bill of exceptions, which is presented in the record in this case. Section 316 of the Code of Civil Procedure provides that “the application for a new trial must be made at the term the verdict, report, or decision is rendered, and, except for the cause of newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.” There is nothing in the motion disclosing a reason for a delay beyond the term in filing it, and for this reason the court erred in not striking the same from the files, or overruling the same as not being filed during the term. In Nelson v. Security Co., 58 Neb. 604, 79 N. W. 161, a special term of the district court was convened in Dawes county on the 27th day of September, 1898. The term adjourned the same day. A motion for a new trial in a case disposed of during the term was filed on the 29th of September, 1898. The court held that the motion should either be stricken from the files, or overruled as being filed out of time. Because the motion was not filed during the term, and no excuse shown for the delay, we can examine only the third assignment of error, which is as follows: “Because the pleadings show that plaintiff is entitled to recover against the defendants in error, and each of them.” If the plaintiff's petition states a cause of action, and the answer of the defendants fails to set forth facts constituting a defense, judgment should have gone for the plaintiff upon the pleadings, and a motion for a new trial was unnecessary to raise the question in this court. A brief statement of the facts alleged in the plaintiff's petition is the following: Prior to February 8, 1892, Belle Robertson was the owner of lots 1 and 2, block 10, in the village of Du Bois, and had made a mortgage thereon to one James M. Storm. Afterward she sold the lots to Mellissa E. and Isaac E. Groom, who made to her a second mortgage thereon to secure a part of the purchase price. Thereafter, and on February 8, 1892, Storm commenced an action to foreclose his mortgage, making Belle Robertson, J. H. Robertson, Mellissa E. Groom, Isaac E. Groom, and other parties defendants thereto. Pending this action Groom sold the lots to Randolph Moss, one of the defendants. In his petition of foreclosure Storm alleged that Belle Robertson was the owner of a mortgage upon the premises, the amount of which was unknown. Service of summons in that action was had on Mrs. Robertson by publication, she apparently having removed from the state after her sale of the lots to Groom. A decree of foreclosure was entered on ...