Woolworth v. Sater

88 N.W. 682, 63 Neb. 418, 1902 Neb. LEXIS 27

• Court: Nebraska Supreme Court
• Decided: January 8, 1902
• Docket: No. 10,872
• Status: Published

Opinion

Norval, C. J.

This appeal is from a decree foreclosing a real' estate mortgage. The petition contained the averment that no proceedings at law have been had or commenced to collect the mortgage debt, or any part thereof. This allegation was put in issue by the general denial in the answer of the defendant Mattie Bohrer. Yet plaintiff introduced no proof to establish this essential allegation in her petition. The decree is therefore without sufficient evidence to sustain it. Jones v. Burtis, 57 Nebr., 604; Miller v. Nicodemus, 58 Nebr., 353.

It is, however, insisted by counsel for plaintiff that, as the note and mortgage which were introduced in evidence do not show that they have ever been filed in any other court or cause, it must be presumed that no suit or proceeding at law had ever been had for their recovery. This argument is not convincing. No legal inference can be so drawn from the lack of filing marks on the note and mortgage.

The decree is reversed and the case remanded.

Reversed and remanded.