Omaha Loan & Trust Co. v. Knight

Post, C. J. On the 5th day of November, 1892, a decree of foreclosure of a real estate mortgage was entered in the cause in the court below, it finding that there was due the plaintiff from Benjamin P. Knight and Adeline F. Knight the sum of $2,671.86, and directing that the mortgaged premises be sold to satisfy the same unless said sum should be paid within twenty days from that date, and “that if there be any balance remaining due the plaintiff after said sale, a judgment shall be rendered in favor of the plaintiff, and against the defendants Benjamin P. Knight and Adeline F. Knight, for the amount thereof.” Subsequently an order of sale was issued, and the property sold thereunder, which sale was duly con-, firmed by the court. Thereafter, on April 4, 1893, plaintiff filed a motion for a deficiency judgment, and notice of the time and place of the hearing thereof was served upon the defendants by delivering to Benjamin P. Knight personally a true and certified copy of the notice and motion, and by leaving a like copy of each for Adeline F. Knight at her usual place of residence in Douglas county. Pending the hearing of this motion Mrs. Knight filed a petition to modify the said decree of foreclosure so far as it found that she was liable for a judgment for any deficiency there should be after the sale of the property. A deficiency judgment was rendered against Benjamin P. Knight on April 27,1893, and the motion for a deficiency judgment against Mrs. Knight was continued to await the hearing of her application to modify the decree. At the September, 1893, term of the court, to-wit, on November 23,1893, the petition to modify the decree was denied, [344] and a deficiency judgment was rendered against Adeline F. Knight'for $920.08. Afterwards, and at the February, 1894, term, a motion was filed by her to set aside tbe deficiency judgment rendered at the preceding term, wbicb motion was denied on March 27, 1894. Tbe transcript on appeal was filed in tbis court on tbe 6th day of June, 1S94. Most of the questions argued in the brief of appellants are based upon alleged errors in the cause preceding the entry of either the original decree or the deficiency judgments, which were rendered against Mrs. Knight, and cannot now be reviewed, inasmuch as the decree of foreclosure was rendered more than two years, and the last deficiency judgment was entered more than six months, prior to the docketing of the appeal in this court. No appeal having been taken from such judgments or decree within the statutory limit, there is no jurisdiction to review either of them. (Renard v. Thomas, 50 Neb., 398, and cases there cited.) Neither of the appellants is in a situation to take advantage of the errors of the court in entering the decree or deficiency judgment, if errors were committed. The sole matter before the court for determination is the correctness of the decision denying the motion to set aside the deficiency judgment rendered against Mrs. Knight, as that was the only order from which an apjieal has been prosecuted in time. The ground of the motion is that the deficiency judgment was irregularly obtained, in that the summons served on Mrs. Knight did not apprise her that plaintiff claimed a deficiency judgment. The summons contained tbis indorsement: “Amount claimed of defendant by the plaintiff is, and foreclosure of mortgage.” Whether tbis was sufficient to authorize the entry of á personal judgment in the case against Mrs. Knight is wholly immaterial, for two reasons: First, notice of the application for the deficiency judgment was duly served upon her. In the next place, she appeared and resisted the application, and subsequently moved to set aside the [345] judgment for deficiency. This constituted a waiver of the defects, if any there were, in the indorsement on the summons. (Cropsey v. Wiggenhorn, 3 Neb., 108; Orr v. Seaton, 1 Neb., 105; Crowell v. Calloway, 3 Neb., 215; White v. Merriam, 16 Neb., 96; Warren v. Dick, 17 Neb., 241; Tootle v. Jones, 19 Neb., 588.) No error was committed in refusing to vacate the deficiency judgment, and the order is accordingly Affirmed.