Theisen v. Peterson
| Decision Date | 19 November 1926 |
| Docket Number | No. 23485.,23485. |
| Citation | 211 N.W. 19,114 Neb. 150 |
| Parties | THEISEN ET AL. v. PETERSON (SECURITY STATE BANK OF OSMOND, INTERVENER). SECURITY STATE BANK OF OSMOND v. PETERSON ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
In an action to foreclose a real estate mortgage, a request for stay, inadvertently filed before the decree is entered of record, will not preclude a review of the case upon the merits.
A statute denying a right of appeal to this court will be strictly construed, and the proceedings to accomplish that result must comply literally with the terms of the statute.
In a contract of exchange certain values were placed upon the properties of the respective parties for the purpose of determining the difference to be paid by one to the other. Held, that such valuation was not binding upon either party in an action for fraud.
Where a contract of exchange has been procured by the fraud of one of the parties, and the other seeks to recoup his damages in an action to foreclose a mortgage given as a part of the transaction, the measure thereof is the difference between the actual value of the property transferred and its value if it had been as represented at the time of the contract of exchange.
Evidence examined and held to establish fraud in procuring the contract.
Appeal from District Court, Pierce County; Welch, Judge.
On rehearing. Former judgment set aside, and case reversed and remanded. For former judgment, see 206 N. W. 768.Spillman & Muffly, of Pierce, C. H. Kelsey, of Norfolk, and Lloyd Dort, of Lincoln, for appellant.
M. H. Leamy and Douglas Cones, both of Pierce, and Leonard A. Flansburg, of Lincoln, for appellees.
Heard before MORRISSEY, C. J., ROSE, DEAN, DAY, GOOD, and THOMPSON, JJ., and REDICK, District Judge.
An opinion was filed in this case December 30, 1925, affirming the judgment of the court below, a motion for a rehearing was overruled, leave given to file a second motion for rehearing and argument had upon the same. An opinion was then prepared disposing of the case upon its merits, but the same has been recalled and the present opinion adopted as the final disposition of the case. For a general statement of facts reference is made to our first decision, 206 N. W. 768, but other facts necessary for the understanding and disposition of the questions presented will be noted. By our first opinion the merits of the case were not discussed nor disposed of, but the judgment of the lower court was affirmed because it appeared from the record that prior to the filing of the appeal in this court the appellant had filed in the district court a request for stay. It was therefore held in accordance with section 8991, Comp. St. 1922, that no appeal was allowable.
In view of the fact that the Constitution of this state provides that the “right to be heard in all civil cases in the court of last resort, by appeal, * * * shall not be denied” (article 1, § 24), we have reconsidered this question. The facts of record regarding the filing of the request for stay are as follows: Trial having been concluded December 13, 1922, the case was taken under advisement, and on January 26, 1923, the court orally delivered its decision on the merits; but the decree was not passed and entered of record until April 20, 1923. On February 14, 1923, defendant filed a supersedeas bond which was approved by the clerk. That the bond was a supersedeas bond is without doubt; it is so recited, the amount fixed by the court at $500, and the condition to prosecute the appeal without delay and pay all costs was all that was required in view of the facts that the personal property had been sold and the real estate in the hands of a receiver. Under such circumstances a condition against waste is superfluous. On February 15, 1923, a request for stay in usual form was filed appearing to be signed by John Peterson. May 22, 1923, præcipe was filed in this court. These proceedings were respectively taken by different attorneys representing defendant, and we think it is justly to be inferred from the record that the request was inadvertently filed and should not defeat the appeal. The existence of the request for stay was not brought to the attention of this court by motion to dismiss the proceedings, nor until the filing of the brief of appellees, May 7, 1924, which discussed the case upon its merits very fully, and the fact of the stay was mentioned only in two lines under propositions of law and five lines in the conclusion of the brief. We are further of the opinion, under the circumstances of this case, that, the request for stay having been filed before entry of the decree upon the record, such irregularity would not destroy its efficacy as a stay. Jenkins Land & Live Stock Co. v. Attwood, 80 Neb. 806, 115 N. W. 305. But by the same liberal construction of a remedial statute, when proceedings are set up to defeat a right protected by the Constitution, they should be regular in all respects. Section 8988, Comp. St. 1922, requires request to be filed “within twenty days after the rendition of such decree,” and section 8991 provides that “no * * * appeal shall be allowed after such stay has been taken.” Where an appeal was required to be taken “within six months after the rendition of the judgment,” we held that “rendition of the judgment” meant the entry thereof upon the record. Bickel v. Dutcher, 35 Neb. 761, 53 N. W. 663. We think they should be given the same meaning here, and that we were in error in holding that the request for stay in this case defeated the appeal. We do not hold that the right of appeal may not be waived, nor that section 8991, supra, is unconstitutional, but that the waiver must be intentional, and the statute enforced literally within its terms. We will therefore consider the appeal on its merits.
On the one side the Security State Bank and Casper Theisen are seeking to foreclose a chattel mortgage for $16,000 and a real estate mortgage for $54,000 and they will be hereinafter referred to as the plaintiffs. John Peterson, purchaser of the Theisen property files a cross-petition seeking to recoup damage he claims to have sustained by alleged false representations of Theisen as to the quality, quantity and value of the cattle and hogs and the value of the half section of land received from Theisen.
While the record is very voluminous it is quite unsatisfactory in regard to many material questions. To start with it may be noted that this was an exchange by Peterson of two Iowa farms, consisting of 184 acres, with the stock and farm implements upon them, for the Theisen farm of 320 acres with a much larger amount of stock, consisting of cattle and hogs,...
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