§ 25-2143 — Prior judgment at law; effect

Nebraska § 25-2143

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

If it appears that any judgment has been obtained in a suit at law for the money demanded by such complaint, or any part thereof, no proceedings shall be had in such case, unless to an execution against the property of the defendant in such judgment the sheriff or other proper officer has returned that the execution is unsatisfied in whole or in part and that the defendant has no property whereof to satisfy such execution except the mortgaged premises.

Legislative History

Source: R.S.1867, Code § 851, p. 543; R.S.1913, § 8260; C.S.1922, § 9213; C.S.1929, § 20-2145; R.S.1943, § 25-2143; Laws 2002, LB 876, § 37. Annotations: Whether creditor mortgagee will be required to first exhaust mortgaged property before subjecting fraudulently transferred property to satisfaction of its judgment is within discretion of court. First Nat. Bank of Omaha v. First Cadco Corp., 189 Neb. 553, 203 N.W.2d 770 (1973). Institution of suit at law upon note and obtaining judgment thereon is not a release of the mortgage security, and does not bar foreclosure after execution on judgment has been returned unsatisfied. Federal Farm Mtg. Corp. v. Adams, 142 Neb. 202, 5 N.W.2d 384 (1942). Failure to amend this section disclosed legislative intent to permit suit at law for deficiency after mortgage foreclosure proceeding is completed. Federal Farm Mtg. Corp. v. Thiele, 137 Neb. 626, 290 N.W. 471 (1940). Conditional allowance of mortgagee's claim against mortgagor's estate did not preclude foreclosure. Quesner v. Novotny, 116 Neb. 84, 215 N.W. 796 (1927). Return of execution unsatisfied did not relieve plaintiff from alleging no action at law where there are guarantors of note. Michigan Trust Co. v. City of Red Cloud, 69 Neb. 585, 96 N.W. 140 (1903), rehearing denied 69 Neb. 592, 98 N.W. 413 (1904). Return nulla bona, when judgment transcripted to another county is sufficient. Allegations required by preceding section are unnecessary. Montpelier Sav. Bank & Trust Co. v. Follett, 68 Neb. 416, 94 N.W. 635 (1903). Proceedings against garnishees upon judgment for debt stays foreclosure. Hargreaves v. Menken, 45 Neb. 668, 63 N.W. 951 (1895). Requirement is for benefit of mortgagor and between lienors is immaterial. Simmons Hardware Co. v. Brokaw, 7 Neb. 405 (1878); Chaffee v. Schestedt, 4 Neb. Unof. 740, 96 N.W. 161 (1903). Return of sheriff nulla bona to execution in law action is sufficient to authorize court to proceed in equity. Zug v. Forgan, 3 Neb. Unof. 149, 90 N.W. 1129 (1902).