Sullivan's Sav. Inst. v. Clark

• Decision Date: 25 April 1882
• Citation: 12 N.W. 103,12 Neb. 578
• Parties: SULLIVAN SAVINGS INSTITUTION, APPELLEE, v. C. M. CLARK, APPELLANT
• Court: Nebraska Supreme Court

12 N.W. 103

12 Neb. 578

SULLIVAN SAVINGS INSTITUTION, APPELLEE, v. C. M. CLARK, APPELLANT

Supreme Court of Nebraska

April 25, 1882

APPEAL from Seward county. Tried below before POST, J.

AFFIRMED.

M. H Sessions, for appellant.

Norval Brothers, for appellee.

OPINION

MAXWELL, J.

This is an action to foreclose a mortgage. It is alleged in the petition "that the said defendant, Cornelius M. Clark heretofore, to-wit, on the 27th day of April, 1874, made, executed, and delivered to this plaintiff his one certain promissory note in writing at that date for the sum of five hundred dollars, payable April 27th, 1877," with interest at 10 per cent. It is also alleged that this defendant paid $ 250.00 Nov. 5th, 1878, and $ 20.30 Nov. 13th, 1878, on said note, and that there is still due thereon the sum of $ 156.50 with interest at 10 per cent. from the 13th day of November, 1878. The answer is a plea of usury, and that the defendant only received the sum of $ 425.00 while giving his note and mortgage for $ 500.00, with interest.

On the hearing of the case the court below found, in substance, that Farwell, who made the loan to the defendant, was the agent of the plaintiff, and that he loaned the defendant only the sum of $ 425.00, and that there is usury in the transaction, and rendered a decree of foreclosure and sale in favor of the plaintiff, for the sum of $ 146.70, and in favor of the defendant for the costs of the action. The decree was rendered May 4th, 1881, and on the 7th day of that month, the defendant filed a request for, and obtained a stay of order of sale for the period of nine months. In November, 1881, he filed a motion to amend and correct the judgment record by allowing the defendant $ 150.00 in addition to the sum allowed him in the decree. The motion was overruled, to which the defendant excepted, and now assigns the same for error.

The error complained of is, that the court did not correct the decree from the entry made by the judge on the trial docket at the time the decree was rendered, from which it appears that there was no finding as to the amount due the plaintiff. There is no complaint that the amount of the decree is too large, or greater than the amount actually owing by the defendant to the plaintiff; but relief is sought on the sole ground that as there was no entry on the trial docket of the amount due to plaintiff therefore there was no authority to enter a decree...