Article 21: Special Proceedings and Actions · Last amended 2002 · Last verified July 22, 2026
R.S.1867, Code § 851, p. 543; R.S.1913, § 8260; C.S.1922, § 9213; C.S.1929, § 20-2145; R.S.1943, § 25-2143; Laws 2002, LB 876, § 37.
Section 25-2143 addresses the reverse of the situation in 25-2140. There, a pending or decided foreclosure blocks a separate suit at law. Here, an existing judgment at law can block foreclosure. If it appears a judgment has already been obtained in a suit at law for the money demanded in the foreclosure complaint, or any part of it, no foreclosure proceedings may go forward.
The section carves out one path around that bar. Foreclosure can proceed anyway if execution against the judgment debtor’s property has been returned by the sheriff or other proper officer as unsatisfied, in whole or in part, and the return shows the debtor has no property to satisfy it except the mortgaged premises themselves. Only after that showing does the creditor get to turn to the mortgage as the remaining avenue for collecting what is owed.
Read together, 25-2140 and 25-2143 keep a single debt from supporting two live proceedings running past each other — one at law, one in equity — without a clear basis for both.
Only if execution against the defendant’s property has been returned unsatisfied, and the return shows no property remains to satisfy it except the mortgaged premises.
That the execution is unsatisfied in whole or in part and that the defendant has no property to satisfy it apart from the mortgaged premises.
No. The section covers an execution unsatisfied “in whole or in part,” so partial nonpayment still permits foreclosure once the required return is made.
They work as a pair covering opposite sequences: 25-2140 bars a separate debt action once foreclosure is pending or decided, while 25-2143 bars foreclosure once a debt judgment already exists, absent an unsatisfied execution return.
The sheriff or other proper officer charged with executing the judgment.
It confirms that the mortgaged premises are, in fact, the remaining source of recovery before the court allows the equitable foreclosure remedy to proceed on top of the existing legal judgment.