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Beebe v. Bahr

M. P. Beebe v. Albert Bahr

Beebe v. Bahr, 120 N.W. 1021 (Neb. 1909)
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Court
Nebraska Supreme Court · State Highest Courts
Decided
April 13, 1909
Docket
No. 15,632
Judges
Calkins, Duffie, Epperson, Good
Citations
120 N.W. 102184 Neb. 1911909 Neb. LEXIS 189
Disposition
Affirmed.
Headnotes
Mortgages: Foreclosure: Burden oe Prooe. In an action to foreclose a real estate mortgage, when the allegations of the petition are denied, the burden is on plaintiff to make prima facie proof that no action at law has been instituted for the recovery of the debt.
Summary
Appeal from the district court for Keya Palm county: James J. Harrington, Judge.

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

Opinion of the Court — Good

Text extracted by OCR from a scanned original; check the original for exact wording.

Good, C.

Plaintiff brought this action in the district court for Keya Paha county to foreclose a mortgage on real estate *192 situate in said county. Defendants denied all the allegations of the petition, and averred that the mortgage lien had been extinguished in tax lien foreclosure proceedings had against the land subsequent to the execution of the mortgage. Defendants had judgment, and plaintiff has appealed.

It is unnecessary to consider any of the plaintiff’s assignments of error. Plaintiff’s petition contained the allegation that no suit, either in law or in equity, had been instituted for the recovery of the debt secured by the mortgage. This allegation of the petition was denied in the answer, and is not sustained by any evidence in the record. It has been repeatedly held by this court that the allegation, although a negative one, unless admitted, must be proved in order to entitle plaintiff to a decree of foreclosure. Jones v. Burtis, 57 Neb. 604 ; Kirby v. Shrader, 58 Neb. 316 ; Miller v. Nicodemus, 58 Neb. 352 ; Lancashire Ins. Co. v. Kierstead, 1 Neb. (Unof.) 437 ; Plummer v. Park, 62 Neb. 665 ; Omaha Savings Bank v. Boonstra, 3 Neb. (Unof.) 382 ; Hedbloom v. Pierson 2 Neb. (Unof.) 799 ; Drury v. Roberts, 2 Neb. (Unof.) 574.

It follows that the judgment of the district court is right, and we recommend that it be affirmed.

Duffie, Epperson and Calkins, CC., concur.

By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is

Affirmed.

How later courts describe this case

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

1916: 11925: 11926: 21928: 11937: 11964: 119162026peak 1926 · 2

Relies on it most ⓘ

  1. UNITED BENEFIT LIFE INSURANCE COMPANY v. Holman130 N.W.2d 593 (Neb. 1964)
  2. Reed v. Good209 N.W. 619 (Neb. 1926)
  3. Jones v. Vennerberg274 N.W. 494 (Neb. 1937)
  4. Prudential Insurance Co. of America v. Qualset218 N.W. 734 (Neb. 1928)
  5. Great Western Commission Co. v. Schmeeckle157 N.W. 612 (Neb. 1916)
  6. Young v. Thompson210 N.W. 407 (Neb. 1926)

Most recent

  1. UNITED BENEFIT LIFE INSURANCE COMPANY v. Holman130 N.W.2d 593 (Neb. 1964)
  2. Jones v. Vennerberg274 N.W. 494 (Neb. 1937)
  3. Prudential Insurance Co. of America v. Qualset218 N.W. 734 (Neb. 1928)
  4. Young v. Thompson210 N.W. 407 (Neb. 1926)
  5. Reed v. Good209 N.W. 619 (Neb. 1926)
  6. Quesner v. Novotny205 N.W. 566 (Neb. 1925)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 4

DepthCaseCited by
Miller v. Nicodemus, 78 N.W. 618 (Neb. 1899) 9
Plummer v. Park, 87 N.W. 534 (Neb. 1901) 9
Jones v. Burtis, 78 N.W. 261 (Neb. 1899) 5
Kirby v. Shrader, 78 N.W. 616 (Neb. 1899) 3

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