
    Effie M. Woolworth, appellee, v. Thomas H. Sater et al., and Mattie Bohrer, appellant.
    Filed January 8, 1902.
    No. 10,872.
    1. Foreclosure: Proof: Petition: Proceedings at Law: Issue: Answer. In a suit to foreclose a real estate mortgage, plaintiff is not entitled to relief without proof to support the averment of his petition that no suit or proceeding at law has been had to recover the debt, or any part thereof, when such allegation is put in issue by the answer.
    2. Proceedings at Law: Evidence: Note: Mortgage. The introduction of the note and mortgage in evidence is not sufficient to sustain an allegation that no action at law has been instituted to collect the debt.
    Appeal from the district court for Custer county. Heard below before Sullivan, J.
    
      Reversed.
    
    
      J oJm E. Dry den, for appellant.
    
      Effie M. Woolworth, for herself, Fred A. Eye and E. J. Woolworth, with her.
   Norval, C. J.

This appeal is from a decree foreclosing a real' estate mortgage. The petition contained the averment that no proceedings at law have been had or commenced to collect the mortgage debt, or any part thereof. This allegation was put in issue by the general denial in the answer of the defendant Mattie Bohrer. Yet plaintiff introduced no proof to establish this essential allegation in her petition. The decree is therefore without sufficient evidence to sustain it. Jones v. Burtis, 57 Nebr., 604; Miller v. Nicodemus, 58 Nebr., 353.

It is, however, insisted by counsel for plaintiff that, as the note and mortgage which were introduced in evidence do not show that they have ever been filed in any other court or cause, it must be presumed that no suit or proceeding at law had ever been had for their recovery. This argument is not convincing. No legal inference can be so drawn from the lack of filing marks on the note and mortgage.

The decree is reversed and the case remanded.

Reversed and remanded.  