Grant v. Clarke

78 N.W. 364, 58 Neb. 72, 1899 Neb. LEXIS 103

• Court: Nebraska Supreme Court
• Decided: February 23, 1899
• Docket: No. 8761
• Status: Published

Opinion

Ryan, C.

In the district court of Douglas county this action was instituted by George M. Grant for the foreclosure of a mortgage securing two promissory notes. The payee of these notes, and the mortgagee, was Martha M. Ish. In his petition plaintiff alleged that by the indorsement of Martha M. Ish and the indorsement of H. Ambler plaintiff had become the owner of said notes and entitled to foreclose the mortgage securing the same. By their answers Walter and Minnie Moise and Anton and Mary Larsen denied the averments of the petition in such a manner that the execution of the assignments aforesaid were put in issue. The notes and mortgage were offered in evidence, but there was no offer of the alleged indorsements, and therefore there was no proof made' of the assignments through which plaintiff claimed title to the notes and the right to maintain an action of foreclosure on the mortgage securing them. (Noll v. Kenneally, 37 Neb. 879; Cummins v. Vandeventer, 52 Neb. 478; Johnson v. English, 53 Neb. 530; Levy v. Cunningham, 56 Neb. 348; Comstock v. Kerwin, 57 Neb. 1.)

As against the parties who had put in issue the alleged assignments the decree lacked sufficient evidence to support it, and accordingly the judgment adverse to the appellants Walter and Minnie Moise and Anton and Mary Larsen is' reversed. Frank N. Clarke made default in the district court, and because of this fact all averments of the petition were properly taken as true, except as to the amount of the recovery (Code of Civil Procedure, sec. 134), and the proof on this point was supplied by the introduction of the notes. Mr. Clarke is, therefore, not entitled to a reversal, but as to the other appellants the judgment is reversed and the cause is remanded for further proceedings.

Reversed and remanded.