
    Ella M. Rose v. Dempster Mill Manufacturing Company.
    Filed February 22, 1906.
    No. 14,136.
    Evidence examined, and held sufficient to sustain the judgment of the district court.
    Error to the district court for Gage county: William H. Kelligar, Judge.
    
      Affirmed.
    
    
      G. M. Johnston, for plaintiff in error.
    
      Rinaker £ Bibb, Hazlett £ Jack and F. M. Prout, contra.
    
   Oldham, C.

This suit had its origin in an action by the plaintiff below, who is also plaintiff in error, to foreclose a real estate mortgage on certain lands situated in Gage county, Nebraska. The mortgage was executed by defendant Hoyt and wife, and after the execution of the mortgage the property was -conveyed subject to the mortgage to the defendant Dempster Mill Manufacturing Company. When the suit to foreclose the mortgage ivas filed, the petition alleged, in substance, that the defendant Dempster company had assumed and agreed to pay the mortgage as part of the purchase price of the premises. There was personal service on the Dempster company, and Honorable F. N. Prout was employed by the company to defend the action. Promptly after his employment Mr. Prout filed a motion to require plaintiff to give security for the costs, the plaintiff being a nonresident of the county. This motion was filed in vacation, and remained on the files for some time, when it was confessed by the plaintiff without the knowledge of Mr. Prout, and proper security was given. When the court convened, after the filing of the motion, Mr, Prout was in attendance as a member of the state senate of Nebraska, at Lincoln. It appears from the testimony that be spoke to the Honorable C. B. Letton, the judge of the district court, who was about to hold court in Gage county, and requested the judge not to take any action in any of the cases in which he (Prout) . was engaged without giving him notice. In response to this request, Judge Letton said that he would see that no undue advantage was taken of Mr. Prout’s absence, and that no orders would be made in cases in which he was interested without giving him an opportunity to be present and to be heard. Relying on this assurance Mr. Prout did not appear at the court in Gage county, and the clerk of the court, by inadvertence, had not entered his name on the docket as attorney for the Dempster company in this case. When the case was reached the defendant was given leave to file an answer, but no notice of such fact was communicated to Mr. Prout because the court was unaware that this was one of his cases. On default of answer a decree was rendered in the foreclosure proceeding, which found, among other things, that the Dempster mill company had assumed and agreed to pay the mortgage as part of the purchase price of the premises. On the coming in of the report of the sale there was a deficiency of nearly $1,700, which was entered as a personal judgment against the defendant mill company.

At a subsequent term of the court the defendant ynill company filed its petition under section 602 et seq. of the code do set aside the default formerly entered against it and to permit it to defend against its liability for a personal judgment. An answer was tendered with the petition, denying that the defendant had ever assumed or agreed to pay the mortgage in controversy. A hearing on the application to set aside the default was had before the same learned trial judge who had entered the original default, and who was personally familiar with the diligence or laches with which defendant’s attorney had attempted to defend the action. On such hearing the application to set aside the default was granted and defendant was permitted to answer. This order of the district court was afterwards brought to this court for review, but the proceeding was dismissed because the order setting aside the default was not a final order. Thereafter issue Avas joined on the answer of the defendant denying its liability for a personal judgment in the action. On the hearing of this issue the testimony clearly established the fact that the defendant had neither by the terms of the deed nor in any other manner ever assumed or agreed to pay the mortgage in controversy. On this showing the court rendered its judgment in favor of the defendant, and to reverse this judgment plaintiff brings error to this court.

We have examined the testimony contained in the bill of exceptions, and are satisfied that the evidence fully Avarrants the conclusion reached by the trial court, and that the judgment rendered is the only one that could he supported by either the law or the conscience of the case. We therefore recommend that the judgment of the district court be affirmed.

Ames and Epperson, CO., concur.

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

Affirmed.

Letton, J., not sitting.  