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Woolworth v. Sater

Effie M. Woolworth v. Thomas H. Sater, and Mattie Bohrer

Woolworth v. Sater, 88 N.W. 682 (Neb. 1902)
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Court
Nebraska Supreme Court · State Highest Courts
Decided
January 8, 1902
Docket
No. 10,872
Judges
Norval
Citations
88 N.W. 68263 Neb. 4181902 Neb. LEXIS 27
Disposition
Reversed.
Headnotes
1. Foreclosure: Proof: Petition: Proceedings at Law: Issue: Answer. In a suit to foreclose a real estate mortgage, plaintiff is not entitled to relief without proof to support the averment of his petition that no suit or proceeding at law has been had to recover the debt, or any part thereof, when such allegation is put in issue by the answer. 2. Proceedings at Law: Evidence: Note: Mortgage. The introduction of the note and mortgage in evidence is not sufficient to sustain an allegation that no action at law has been instituted to collect the debt.
Summary
Appeal from the district court for Custer county. Heard below before Sullivan, J.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Norval

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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 *419 drawn from the lack of filing marks on the note and mortgage.

The decree is reversed and the case remanded.

Reversed and remanded.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1965: 119652026peak 1965 · 1

Relies on it most ⓘ

  1. BANKERS LIFE COMPANY v. Peterson132 N.W.2d 377 (Neb. 1965)

Most recent

  1. BANKERS LIFE COMPANY v. Peterson132 N.W.2d 377 (Neb. 1965)

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