in Douglas county, dismissing the action from and transfers to the payee, as collateral securithe district court of Sarpy county, was like

ty thereto, a note then held against a third per

son secured by a real-estate mortgage, a decree wise void. Johnson v. Bouton (Neb.) 77 N.

foreclosing such mortgage will not bar an acW. 57. If the district judge had jurisdiction tion at law on the first note, since it did not -and we do not discuss or decide that ques- evidence the debt the mortgage was previously tion-to hear the evidence in this case, and

given to secure.

3. In an action upon a promissory note, when the arguments therein, in Douglas county, it is disclosed that one maker is the principal while the action was pending in the district debtor and the other signed as surety merely, a court of Sarpy county, and if he had jurisdic

judgment for the plaintiff should, under sec

tion 511 of the Code of Civil Procedure, state tion to decide the case in Douglas county

which defendant is the principal debtor and upon the termination of the argument, and which is surety. if bis conclusion that the situs of the real (Syllabus by the Court.) estate involved was in Douglas county was

Error to district court, Douglas county; correct, then he should have entered a decree

Ferguson, Judge. in the district court of Sarpy county dismiss

Action by the Home Fire Insurance Coming Leffert's action. But he had no jurisdic

pany against William J. Maxwell and John tion to transfer the case from Sarpy county

T. Clark. Judgment for plaintiff, and defendto Douglas county for the purpose of a trial

ants bring error. Reversed. or decision. Fisk v. Thorp, 51 Neb. 1, 70 N. W. 498. The record shows that no trial of Duffie & Van Dusen, for plaintiffs in error. this case ever took place in the district court W. H. De France, for defendant in error. of Douglas county, but by the order of the judge, as already stated, the case was docket- NORVAL, J. This was an action by the ed there, and there decided; and, since the Home Fire Insurance Company of Omaha order of the court docketing the case in against William J. Maxwell and John T. Douglas county was void, the case was not Clark, as joint makers of a promissory note there, and the decree of the district court for $1,900, given Jarch 29, 1890, and due of Douglas county pronounced in that action three years thereafter, drawing 8 per cent. is a nullity.

interest from date of obligation. The defendIt appears from the record that the orders / ants, for answer to the petition, admit the which we have said were made by Judge execution of the note, and allege, in subAmbrose, transferring this case from the stance, that the defendant Maxwell delivered district court of Sarpy county to the district to plaintiff, as collateral security to the debt, court of Douglas county, and dismissing this a certain promissory note for $3,400, executed action out of the district court of Sarpy coun- by one George M. O'Brien, Jr., payable to the ty, were intended to be orders of the district said Maxwell, and secured by mortgage on court of Douglas county, as they purport to real estate situate in Douglas county; that, have been made at the September term of after the maturity thereof, Maxwell comthat court, and purport to be orders of court. menced a suit to foreclose such mortgage, in But whether these orders were made by which the Home Fire Insurance Company of Judge Ambrose as judge, simply, or whether Omaha intervened, and in the decree renderthey were made by him as the district court ed therein it was awarded a first lien on the of Douglas county, they were equally void. mortgaged premises for $1,913.55, being the Neither the district court of Douglas county, amount at that time due upon the note in nor a judge thereof, had any jurisdiction to controversy herein; that said decree is still make an order or enter a decree in that in force, and wholly unsatisfied, and is a bar county dismissing an action pending in Sarpy to the present action; and that the defendcounty, nor any jurisdiction to make an or- ant Maxwell was the principal on the note der or decree in that county transferring the declared on herein, and that the defendant case from another county to that. The de- Clark signed the same as surety. A general cree appealed from is reversed. The entire demurrer to the answer was interposed by proceedings, so far as they purport to be the plaintiff, which the court sustained, the brought to or pending in Douglas county, are defendants refused to further plead, and a dismissed. Reversed and dismissed.

joint judgment was entered against both for $2,280, without designating which was principal on the note and which executed as surety.

From the order denying defendants' motion for MAXWELL et al. v. HOME FIRE INS. CO.

a new trial, they prosecute error to this court. (Supreme Court of Nebraska. Dec. 22, 1898.) The first argument of defendants below is MORTGAGES-ESFORCEMENT - PLEDGE-JUDGMENT that the taking of a decree of foreclosure in -PRINCIPAL AXD SURETY.

the suit on the collateral note and mortgage is 1. Under the provisions of section 817 et seq. a bar to the present action, by virtue of the of the Code of Civil Procedure, as existing prior to 1897, either an action at law for the re

provisions of section 817 et seq. of the Code covery of a debt secured by a real-estate mort

of Civil Procedure, as they existed at the gage or a suit to foreclose the mortgage will time when the note herein was given, this jie; but both remedies cannot be pursued at

action was instituted, and the judgment unthe same time, unless permission is given therefor by the court.

der review was pronounced. Section 817 of 2. Where one executes a promissory note, the Code of Civil Procedure (Comp. St. 1885) requires that a petition to foreclose real-es- gation to which he is not in any way a party, tate mortgages shall be filed in the county and which was not existence when the where the premises are situated. The next mortgage was given. In the foreclosure succeeding section authorizes the court in against O'Brien no deficiency judgment could such a suit to decree a sale on a whole or have been obtained against either Maxwell part of real estate covered by the mortgage, or Clark for the amount remaining unpaid of as may be deemed sufficient to pay the the mortgage debt after sale of the mortamount due and costs. Section 817, as it gaged property, so that the case at bar does then existed, relates to the rendition of de- not fall within the scope and object of the ficiency judgments in foreclosure suits for the statute stated in Meehan v. Bank, supra, as amount remaining due and unsatisfied after follows: "The purpose of these provisions is sale of the mortgaged premises, in cases in evidently to avoid the two actions being in which such balance is recoverable at law, progress at the same time, and also the and authorizes the issuance of execution to

double costs and expenses, and to confine the collect such deficiency judgment. Sections | creditor as closely as may be, consistent with 848 and 849 of said Code, as then in force, justice to him and his demands, to the one follow:

action; and more especially does this seem "Sec. 818. After such petition shall be true of the foreclosure action in which he filed, while the same is pending and after is allowed to first subject the mortgaged decree rendered thereon, no proceedings property to the payment of the debt and the wbatever shall be had at law for the re- further remedy of a deficiency judgment for covery of the debt secured by the mortgage, any balance of the debt remaining unextinor any part thereof, unless authorized by the guished." Section 818 is so plain and free court.

from ambiguity as to admit of but one in“Sec. 849. If the mortgage debt be secured

terpretation. During the pendency of a suit by the obligation or other evidence of debt to foreclose a real-estate mortgage, or after of any other person besides the mortgagor, the rendition of the decree therein, the legisthe complainant may make such person a lature has by said section prohibited the party to the petition, and the court may de- maintaining of an action “at law for the recree payment of the balance of such debt re

covery of the debt secured by the mortgage, maining unsatisfied after a sale of the mort

or any part thereof, unless authorized by the gaged premises, as well against such other court." There is no inhibition against the person as the mortgagor, and may enforce

prosecution of proceedings at law to recover a such decree as in other cases."

debt, other than the one the mortgage at its The two sections quoted were considered inception was given to secure. It was never and construed, in connection with sections the intention of the lawmakers that the statS50 and 851 of the Code of Civil Procedure, ute should apply to cases like the one at bar, in Meehan v. Bank, 44 Neb. 213, 62 N. W.

else appropriate language indicative of such 490; and in an opinion by the present chief a purpose would have been used in framing justice it was ruled that the statute author- the law. The note in suit is not the mortgage ized either an action at law for the recovery debt, and the fact that a decree of foreclosure of the debt secured by real-estate mortgage, has been taken on the note, and mortgage or a suit to foreclose the mortgage, at the held as collateral thereto, will not defeat the option of the owner and holder thereof, but present action. The note signed by Maxwell when he chooses one remedy he must ex- and Clark was not taken as security for the haust it before resorting to the other, unless | mortgage debt of O'Brien, and hence is not permission of the court is first obtained to embraced within the provisions of said secpursue both remedies at the same time; and tion 819, and is not an obligation or other that, pending foreclosure suit or after decree, evidence of debt of any person besides the an action of law on the obligation or evidence mortgagor, within the meaning of the law. of debt of a person other than the mortgagor, The two New York cases cited by counsel such as an indorser of the note secured by the for defendants below do not in the least conmortgage, cannot be prosecuted without con- flict with the views herein expressed, or the sent of the court of equity. That this deci. conclusion we have reached on this question, sion is sound we do not entertain the shadow as will be disclosed by an examination of the of a doubt, and, if this were an action at law | reported decisions. In Suydam v. Bartle, 9 against O'Brien to recover the amount of his Paige, 291, it appears that James P. Bartle mortgage debt, it is very evident the doctrine and others executed a real-estate mortgage announced in the case of which mention has which on its face purported to secure a bond heen made would control. Manifestly, after for $10,000, although the mortgage in fact the entry of the foreclosure decree against was given as security for certain drafts or O'Brien, an action at law could not be main- bills of exchange drawn by the obligors in tained to recover from him the sum due on the bond and one Westfall, which had been the debt secured by the mortgage without accepted by the plaintiff. In a suit to foreleave of the court, in which foreclosure was close the mortgage, permission was asked to brought, to pursue that remedy, having been proceed to trial and judgment in the action first procured. However, this is not an ac- at law which had already been commenced tion upon the O'Brien note, but upon an obli- for the recovery of the mortgage debt from

ty; that there had been a failure on the part | Hendrix v. Barker, 49 Neb. 369, 68 N. W. of the appellee to perform his agreements, 531. evidenced by said instrument. The relief The argument that the appellant could not asked was a foreclosure as of a mortgage. sue for the reason that his appointment as The appellee, in his answer, pleaded occu- administrator of the estate of the deceased pancy of the premises involved in the suit party to the contract, whom he claimed to with his family as a home, and its conse- represent, was not sufficiently shown, in quent homestead character, and the lack of that the evidence introduced in this connecthe signature of his wife to the contract up- tion disclosed no sufficient petition or no on which the action was predicated; also al- petition in application for such appointment leged that the contract declared upon in the in this state, is without force, for the reapetition was a lease, which also contained son that the present suit was by the appelan agreement on the part of the lessor to lant according to the pleading and proof unsell the leased property to the lessee at a der his appointment by the proper court of date subsequent to the making of the lease; the state of California, where such party and that the contract, by reason of the non- died, and where the appellant was duly apfulfillment of some of its conditions, had pointed administrator with the will annexed become ineffective, or without further force. of the estate of the deceased. The will was There was, for the appellant, a reply, which admitted to probate in this state, but there was a general denial. The judgment of the was nothing shown of any proceedings for court was for the defendant in the action, the appointment of an administrator; but and the plaintiff has appealed.

an administrator or executor appointed in The first question presented is relative to another state may commence and prosecute the character to be given to the agreement an action in the courts of this state. Comp. which is the basis of the suit, and in doing St. 1897, c. 23, $ 337; Cox v. Yeazel, 49 Seb. this we must give effect to the requirements 343, 68 N. W. 483. of section 53, c. 73, Comp. St. 1897, which Objection is made that the notice of the reads as follows: "In the construction of hearing in the county court in this state lackevery instrument creating or conveying, or ed in what it is asserted was an essential authorizing or requiring the creation or con- particular. To this it must be answered that veyance of any real estate, or interest there- the notice introduced in this case did not in, it shall be the duty of the courts of jus- purport to be of the appointment of an adtice to carry into effect the true interest of ministrator, but of the projected admission the parties, so far as such intent can be col- of the will to probate; and, further, the lected from the whole instrument, and so question of the sufficiency of a notice of this far as such intent is consistent with the nature, or of the hearing of application for rules of law." Hervey v. Locomotive Works, letters of administration, could not be rais93 U. S. 664. The instrument in suit has ed by one not interested in the estate in this some direct earmarks of a lease. It contains collateral action. Crosw. Ex’rs & Adm'rs, some terms and expressions which would, p. 140, $ 252, and cases cited in note 6. taken literally, stamp it as a lease; but, The question of the homestead right, and when its substance is examined critically, the lack of the signature of the wife of apthe apparent character of the instrument is pellee to the contract, cannot enter into this destroyed. The arrangement of the consid- controversy. If the appellee was, with his eration in reference to the payment by in- | family, occupying the property sought to be stallments being $60 for each of the four affected herein at the time of the contract years succeeding the time of the execution in suit, it was without any title, or at least of the contract, and $660 at the expiration of the evidence before us does not disclose any, the fifth year, the $60 payments being each or by what right sich occupancy was of exthe one year's interest at 10 per cent. per istence; and a homestead right would not annum on the $600, which it seems more than arise and attach to the title or interest acprobable was a principal sum of the con- quired by appellee under the contract as sideration for the contract between the par- against the enforcement of the consideraties, furnishes a strong indication of a sale. tion by which the title or interest was so acThere is a further strong indication of a sale quired. Prout v. Burke, 51 Neb. 24, 70 N. W. in the feature of the agreement in relation 512, and citations therein. to a conveyance of the property to the con- There was testimony to the effect that the tractee by the contractor on full payment notes which had been given in the transacof all sums stated in the contract, as evi- tion which formed the basis of this action venced by the notes. All things considered, were destroyed by the payee. If this was we are forced to conclude that the instru- true, the appellee could be accorded no benement declared upon in the petition was an fit of such act in this suit, for the reason executory contract for the sale of land. If that there was no issue presented by the so, the appellant might, as one of the reme- pleadings under which such defense was dies afforded on default of the other party available. There was evidence which called in the performance of the essential condi- for a finding and decree for the appellant as tions of payment of the consideration, en- to the amounts of the payments provided for force collection in a suit of foreclosure. in the notes described in the contract, but