Snyder v. Collier

• Decision Date: 14 December 1909
• Docket Number: 15,847
• Citation: 123 N.W. 1023,85 Neb. 552
• Parties: GEORGE E. SNYDER, APPELLANT, v. FRANCIS J. COLLIER ET AL., APPELLEES
• Court: Nebraska Supreme Court

123 N.W. 1023

85 Neb. 552

GEORGE E. SNYDER, APPELLANT, v. FRANCIS J. COLLIER ET AL., APPELLEES

No. 15,847

Supreme Court of Nebraska

December 14, 1909

APPEAL from the district court for Douglas county: LEE S. ESTELLE JUDGE. Reversed with directions.

Reversed and remanded, with directions.

Baldrige & De Bord, for appellant.

Warren Switzler, contra.

OPINION

ROOT, J.

This is an action to foreclose two real estate mortgages. The district court foreclosed one, and canceled the other alleged lien. Plaintiff appeals from the judgment canceling his mortgage, and reference will be made solely to the record relating to that instrument.

The mortgage and note secured thereby were executed by "George B. Collier, Trustee," and he is identified in said instrument and in the acknowledgment thereto by the same title. The note is payable to the order of Harrison Snyder, but was given for the benefit of Harrison Snyder & Son, a partnership. George E. Snyder is the surviving member of said firm and sole legatee of the will of Harrison Snyder now deceased. The pleader stated in the petition "Plaintiffs show that at the time of the execution of said mortgage and note the maker of said note and said mortgage, George B. Collier, was acting as trustee for Hettie L. Collier, and held said property and executed said mortgage as such trustee." Before this action was instituted, Hettie L. Collier and the maker and the payee of said note had all departed this life. The suit was commenced in the name of the executors of the last will and testament of Harrison Snyder, deceased, but during the trial, by consent of all parties, George E. Snyder was substituted as plaintiff.

Francis J. Collier, the only defendant answering herein, is the surviving executor of the will and a son of Hettie L. Collier, deceased, and has apparent title to the mortgaged lots. Defendant pleads several defenses immaterial for an understanding of this opinion, and charges: "At the time the note and mortgage is alleged to have been given, sued for in plaintiffs' second cause of action, the title and ownership of the real estate mentioned in plaintiffs' second cause of action was in Hettie L. Collier, now deceased, and the defendants deny that said George B. Collier, as trustee or otherwise, acted for or on behalf of the said Hettie L. Collier, or that she received any benefit from the said note and mortgage, and they deny that he had any authority to make said mortgage or to incumber said property with the same." Defendant asks that the mortgage be canceled, his title to said property quieted, and for equitable relief. The original reply is a general denial.

Over defendant's objections that the evidence was irrelevant and immaterial, plaintiff introduced copies of all of the files and the record made in proceedings prosecuted in the district court for Douglas county by the executor of Hettie L. Collier's will, for license to sell the mortgaged premises. The executor's deed and a conveyance from the purchaser to Francis J. Collier were likewise placed in evidence by plaintiff. During argument, plaintiff requested permission to file an amended and substituted petition, which omitted all reference to George B. Collier holding title to the mortgaged lots as trustee for his mother. Counsel for plaintiff made an affidavit that said allegation was inserted in the original petition by affiant after an examination of the records of Douglas county, and not because of any information furnished or instructions given by his client. Defendant objected, and was sustained, "for the reason that the testimony in the case has all been heard before the court, and part of the argument has been heard in the case," and that the amended pleadings would change the issue upon which the case was tried. Plaintiff then moved the court to dismiss without prejudice the second cause of action. The record discloses an extended discussion between counsel and the court, and that theretofore during the trial counsel had requested permission to file an amended reply pleading that defendant is estopped from denying the validity of the mortgage. The court ruled that the second cause of action should be dismissed, but without prejudice to defendant's answer, which is referred to in this connection as a cross-bill. Thereupon plaintiff presented his amended reply, wherein he alleged that the executor of Hettie L. Collier's estate had sold said lots subject to said mortgage, and "denies that George B. Collier, trustee, at the time of giving said note and mortgage mentioned in second paragraph of said petition, was acting as trustee for Hettie L. Collier." The court denied plaintiff's request "because it is inconsistent with the petition on file," but subsequently struck out said denial and permitted the pleading to be filed.

1. Plaintiff contends that he should have been permitted to file the amended petition. Section 144 of the code authorizes amendments either before or after judgment in furtherance of justice, and the statute has always been liberally construed. The showing in the instant case is sufficient to bring plaintiff within the protection of the code, and he should have been permitted upon terms to file his amended petition.

2. Plaintiff argues that he had the right to dismiss the second cause of action, and that his pleading should not have been retained to support defendant's demand for affirmative relief. Section 430 of the code is imperative that a plaintiff, before the final submission of his case, may dismiss it without prejudice to a future action. The instant case had not been finally submitted when plaintiff made his request, and, had he at that time dismissed his second cause of action, the court would have been without jurisdiction to further consider it. Grimes v. Chamberlain, 27 Neb. 605, 43 N.W. 395. By requesting permission to dismiss, plaintiff merely observed that respect due the court, and it erred in not sustaining the application. Beals, Torrey & Co. v. Western Union Telegraph Co., 53 Neb. 601, 74 N.W. 54; Sharpless v. Giffen, 47 Neb. 146, 66 N.W. 285; Eden Musee Co. v. Yohe, 37 Neb. 452, 55 N.W. 866; Linton v. Cooper, 75 Neb. 167, 106 N.W. 170.

3. Plaintiff contends that the answer is insufficient to support a decree canceling his mortgage. Defendant argues that the petition and the reply cure all defects in the answer. If the answer had been defensive solely, it would have followed the dismissal of plaintiff's case, but defendant asked for affirmative relief, and it was not within plaintiff's power by retreating to bar his adversary from a trial of the latter's counterclaim. Defendant did not ask relief against a codefendant, but pursued plaintiff, and therefore was not charged with the duty of filing a cross-bill; but the facts, to sustain an affirmative judgment in defendant's favor, should have been stated in his answer. Code, sec. 99; Maxwell, Pleading and Practice (4th ed.) pp. 152, 689. The actor in all suits not controlled by special statutes should allege in his pleading the ultimate facts upon which he...