Mead v. Tzschuck

Nor val, J. This is the second appearance of the case before this court. (Tzschuck v. Mead, 47 Neb. 260.) On the former hearing the decree of the district court in favor of Mead was reversed, and the cause was remanded for further proceedings therein. The second trial in the court below resulted in a decree against Mead, and he has brought the record here for review. The opinion filed on the former hearing contains a complete' statement of the case and the questions involved, which obviates the necessity of making an extended statement at this time. The suit was instituted by Mead to foreclose a mortgage and for a deficiency judgment. Prior to the bringing of the suit Mead had obtained a decree of foreclosure of the same mortgage in the circuit court of the United States for the district of Nebraska, and a sale of the mortgaged premises was had thereunder. The sale was confirmed and a deficiency judgment was refused against Tzschuck. In- the present cause the latter interposed as a defense the decree and proceedings in the circuit court of the United States. Upon the consideration of the pleadings and evidence in the prior opinion it was held that the order of said circuit court entered in the cause, refusing a deficiency judgment, involved the merits of the application, and not the question of jurisdiction only. Counsel for plaintiff, in his brief, argues none but propositions which were settled adversely to his contention in the former opinion. The determination of a question presented in reviewing proceedings had in the cause in the district court becomes the law of the case and will not be re-examined. (Coburn v. Watson, 48 Neb. 257; Fuller v. Cunningham, 48 Neb. 857.) The competent and material evidence adduced on the last trial is substantially the same as on the former appeal, and the question whether the circuit court of the United States denied the motion for a deficiency judgment for want of jurisdiction must [617] be considered foreclosed by the former decision on that point. Tlie decree is Affirmed.