Levy v. South Omaha Savings Bank

77 N.W. 769, 57 Neb. 312, 1899 Neb. LEXIS 8

Opinion

Harrison, C. J.

In an action for the foreclosure of a real estate mortgage a decree was rendered for the plaintiff, and the defendants have presented the cause to this court for review,. In the district court they© were answers tor but two of the now plaintiffs in error, and as to the one for whom there was no answer the decree must be taken as confessed and entirely proper. One of the motions for a new trial was jointly for the non-answering party and one of the others, and the petition in error is jointly by all three plaintiffs in error. One of the parties had not answered, had raised no issues, and could not. question the decree. The petition in- error must necessarily be overruled as to him, and this being true, it is unavailable to any of the parties who joined in it. If two or more persons join in a petition in error and it is not good as to all, it will be overruled. (Shabata v. Johnston, 53 Neb. 13, 73 N. W. Rep. 278; Small v. Sandall, 45 Neb. 306, 63 N. W. Rep. 824; Harold v. Moline, Milburn & Stoddard Co., 45 Neb. 618, 63 N. W. Rep. 929; Gordon v. Little, 41 Neb. 250, 59 N. W. Rep. 783; Omaha Fair & Exposition Ass’n v. Missouri P. R. Co., 42 Neb. 105.) It follows that the judgment must be

Affirmed.