DocketNumber: No. 12,408
Citation Numbers: 67 Neb. 219
Judges: Hastings, Kirkpatrick, Lobingier
Filed Date: 1/21/1903
Status: Precedential
Modified Date: 7/20/2022
This is a snit brought in the district court for Douglas county to foreclose a lien upon eighty-two and a half shares of the capital stock of the Grant Paving Company, which certificates had been pledged as security for the payment of three promissory notes aggregating the sum of $5,000. The snit was brought on the 16th day of August, 1901, and plaintiff in error, defendant below, was required to answer on or before September 17, 1901. On October 23, 1901, a decree was entered by the trial court, foreclosing the lien
It is disclosed by the record that on October 23, 1901, and on the same day the default was entered, plaintiff in error filed in the office of the clerk of the district court a general demurrer to the petition. A copy of the appearance docket, which has been made a part of the record, discloses that the decree of foreclosure, properly signed by the trial judge, was filed in the office of the clerk before the demurrer of plaintiff in error was filed. In the decree entered by the court is found this language: “This cause coming on to be heard on this 23d day of October, 1901, and it appearing to the court that the defendant John Grant has been duly and legally served with summons, commanding him to appear and plead herein, and it further appearing that the said defendant John Grant has failed to appear and plead herein within the time allowed by law and the rules of this court, he is now adjudged to be in default for want of any appearance, and default is hereby entered against the defendant John Grant.” It is contended on behalf of plaintiff in error that the demurrer was in fact filed in the morning of October 23, and before the entry of the decree. If this is true, it does not so appear in the record. It is the settled rule that error must affirmatively appear. It can never be presumed. The trial court found and adjudged plaintiff in error to be in default for want of any appearance, and this finding must be taken as true, espe
Is the judgment erroneous because of failure to state a cause of action in the petition? The petition sets up the execution and delivery of the promissory notes by plaintiff in error to defendant in error, copies of the notes being set out, and also alleges that “each one of said promissory notes aforesaid is now wholly due and unpaid.” It is disclosed by the petition that one of these notes was a demand note, and there is no allegation that a demand had been made. Again, it is urged that there is no allegation setting out the agreement under which it was proposed to sell the shares of stock. Regarding the first contention, it may be said that it does not appear to be necessary that the demand be alleged in order to entitle plaintiff to recover on' a promissory note payable on demand. As to the other proposition, it seems rather to be an objection going to the certainty and particularity of the allegations, and as such, comes too late after judgment. Plaintiff in error, if he desired a more specific and certain statement, should, by proper application, have asked the trial court to require a more definite and specific statement. Neither of these contentions can be sustained.
It is next contended that the decree is not according to law, because it in terms directs the sheriff to assign and transfer the shares of stock to the purchaser before it contains the provision that the sale must be reported to the trial court. That portion of the decree is in the words fol
There seems to be no error in the record, and it is therefore recommended that the judgment of the trial court be affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is
AFFIRMED.