Taylor v. Coots

• Decision Date: 06 May 1891
• Citation: 32 Neb. 30,48 N.W. 964
• Parties: TAYLOR v. COOTS.
• Court: Nebraska Supreme Court

32 Neb. 30

48 N.W. 964

TAYLOR

v.COOTS.

Supreme Court of Nebraska.

May 6, 1891.

Syllabus by the Court.

1. In 1857 one R. J. T. executed a mortgage on certain real estate in Douglas county. In 1872 an action was brought to foreclose the mortgage, service by publication, and a decree of foreclosure and sale had, under which the real estate was sold, the sale confirmed, and a deed made to the purchaser. Held that, if the court had jurisdiction, any errors committed by it in the course of the proceedings were not subject to collateral attack.

2. Where the defendant was a non-resident of the state, an affidavit for publication, in which it was set forth that the action was brought to foreclose a mortgage of real estate in Douglas county, that the defendant was a non-resident, and absent from the state, and could not be served with a summons therein, was sufficient to authorize service by publication.

3. A notice of the pendency of an action to foreclose a mortgage, published five consecutive weeks in a weekly newspaper, is a good publication, although one week longer than necessary.

4. Proof of publication, sworn to by the bookkeeper of the company printing the same, is sufficient evidence prima facie of that fact. The proof may also be made by any person having actual knowledge of the fact.

5. The sufficiency of the petition is not a test of jurisdiction, as the court may commit an error in holding it sufficient; but this, if the court had jurisdiction, will not render the judgment subject to collateral attack. Trumble v. Williams, 18 Neb. 144, 24 N. W. Rep. 716.

Appeal from district court, Douglas county; CLARKSON, Judge.

B. G. Burbank and John W. Lytle, for appellant.

Wm. D. Beckett and Guy R. C. Read, for appellee.

MAXWELL, J.

A demurrer to the amended petition was sustained in the court below, and the action dismissed. The amended petition is as follows: “That prior to the 11th day of April, 1857, the late Richard J. Taylor was the owner in fee-simple of lot seven, in block 181, in the city of Omaha, Douglas Co., Neb. That the said plaintiff was the wife of the said Richard J. Taylor, who died on or about the ______ day of February, 1888, and that he left no will or bequest to any person. That said property was inherited by his heirs, who are the children of this plaintiff and the said Richard J. Taylor, and that said heirs have executed a deed conveying said property to this plaintiff, and she now succeeds to all the rights in said property held by the said Richard J. Taylor. That on said 11th day of April, 1857, the said Richard J. Taylor executed to one Wm. B. Street a certain mortgage upon said premises held by him at that time to secure a promissory note in the sum of $243.80. That on the 6th day of January, 1872, the said Wm. B. Street commenced foreclosure proceedings against said Richard J. Taylor upon said note and mortgage, by filing a pretended petition in said action. A copy of said petition is as follows, to-wit: ‘In the district court of Douglas county. In equity. William B. Street, Plaintiff, vs. Richard J. Taylor, Defendant. Petition. Now comes the plaintiff, and complains, and says: (1) That on the 11th day of April, 1857, the said defendant made his certain promissory note, dated on said day at Des Moines, Polk Co., Iowa, whereby, for value received, three months after date, I promise to pay to the order of said plaintiff $243.80, at Oskaloosa, Mehaska Co., Iowa, and delivered the same to said plaintiff, who thereby became and still is the true and lawful owner and holder thereof. (2) That, for the purpose of securing the payment of said note by his certain indenture of mortgage of even date therewith, said defendant conveyed to said plaintiff certain lands described as follows: Lot 8, in block 99; lot 8, in block 160; lot 1, in block 254; lot 3, in block 184; and lot 7, in block 181,--in the city of Omaha, in Douglas county, subject to a condition that the same should be void in case of non-payment of said note at the time agreed to between the parties, which mortgage was duly executed and acknowledged and on the 18th day of July, 1859, recorded in the registry of said county. (3) That no part of said note has ever been paid or collected, and no proceedings have been had at law to enforce the same. Wherefore said plaintiff prays a judgment of foreclosure and sale of said premises; that the proceeds arising on said sale be applied to pay said mortgage debt; that execution be granted for any deficiency that may arise after the said sale or the proceeds thereof to answer said debt; and that he may have all other relief necessary and proper, with costs. ALBERT SWARTZLANDER and J. M. WOOLWORTH, Attorneys.’ The above petition was in no manner verified as required by law. (4) In connection with the above petition, plaintiff filed an affidavit for the purpose of obtaining service by publication upon the said Richard J. Taylor, who is a non-resident of the state of Nebraska. The following is a copy of said affidavit: ‘State of Nebraska, Douglas County--ss.: Albert Swartzlander, being duly sworn, says that he is one of the attorneys for plaintiff in above petition; that the plaintiff and defendant is each a non-resident of and absent from this state; that said defendant cannot be served with summons therein; that this action is brought to foreclose a mortgage and the sale of real estate in said county under mortgage. ALBERT SWARTZLANDER. Subscribed in my presence, and sworn to before me, this 6th day of January, 1872. GEORGE ARMSTRONG, Clerk.’ (5) Plaintiff further alleges that said Wm. B. Street commenced the publication of service on the 3d day of January, 1872, and three days before the petition in said cause and the affidavit for service had been filed in said district court; that proof of said service was filed in said court on the 11th day of March, 1872; that the affidavit of proof of publication was made by L. Richardson, one of the proprietors of Omaha Weekly Herald, a newspaper published in Omaha, Neb.; wherefore plaintiff says that said service was wholly null and void, and of no effect, for the purpose of service upon said Taylor. (6) That on the 28th day of February, 1872, the said Wm. B. Street commenced a second publication of said notice for service in said newspaper, thereby seeking to obtain jurisdiction in said cause. The affidavit which was filed to prove the service was made by John S. Briggs, who was a book-keeper of said newspaper, and is as follows: ‘Jno. S. Briggs, being duly sworn, deposes and says that he is a book-keeper of the Omaha Weekly Herald, a newspaper printed in Omaha, in said county of Douglas; that the printed notice hereto attached was published in said weekly newspaper five consecutive weeks next after and including the 28th day of February, A. D. 1872; the said newspaper was during that...