BANKERS LIFE COMPANY v. Peterson

A decree foreclosed a real estate mortgage. On appeal we conclude that there must be a new trial because plaintiff has not proved that no proceedings at law for recovery of the indebtedness had been had.

Plaintiff’s allegation that no proceedings at law had been had for recovery of the mortgage indebtedness was required, section 25-2142, R. R. S. 1943, and was denied. A mortgagee must establish this negative averment, United Benefit Life Ins. Co. v. Holman, 177 Neb. 682, 130 N. W. 2d 593, but he may do so by circumstantial evidence. Lyons v. Allen, 88 Neb. 41, 128 N. W. 652; Nielsen v. Central…