Carson v. Jansen

• Decision Date: 01 July 1902
• Docket Number: 11,927
• Citation: 91 N.W. 398,65 Neb. 423
• Parties: JOHN LIND CARSON ET AL. APPELLANTS, v. MAY JANSEN ET AL. APPELLEES
• Court: Nebraska Supreme Court

91 N.W. 398

65 Neb. 423

JOHN LIND CARSON ET AL. APPELLANTS, v. MAY JANSEN ET AL. APPELLEES

No. 11,927

Supreme Court of Nebraska

July 1, 1902

APPEAL from the district court for Lancaster county. Heard below before HOLMES, J. Affirmed.

AFFIRMED.

Jefferson H. Broady, for appellants.

Tibbets Bros. Morey & Anderson, contra.

POUND C. BARNES and OLDHAM, CC. concur.

OPINION

POUND, C.

Appellants had brought a suit against appellees to set aside an assignment of a judgment from defendant Murphy to defendant May Jansen, as being in fraud of creditors, and to subject the judgment and its proceeds to payment of a judgment which appellants held against said Murphy. Upon decree for the defendants in that suit an appeal was taken. In furtherance of that appeal, appellants procured an order of the district court fixing the amount of a supersedeas bond "to stay proceedings until the plaintiffs can review the judgment herein in the supreme court on appeal or error." Said order made no provision as to the conditions of the bond. A bond was given in the prescribed amount, conditioned that the appellants pay costs and abide the result of the appeal. Pending proceedings in the supreme court, the defendant May Jansen issued execution on the judgment in dispute and was threatening and about to collect it, when appellants brought the present suit to enjoin her from so doing, and to maintain the status quo pending their appeal. Upon hearing, a decree was rendered for the defendants, which is now before us.

If the supersedeas bond given in the original suit were sufficient to prevent the defendant May Jansen from proceeding to collect the judgment assigned to her, it would probably follow that an injunction could be had to prevent violation of the supersedeas and protect the rights of appellants pending their appeal. Nix v. Gilmer, 5 Okla. 740, 50 P. 131. But we do not think the bond filed had that effect. The original suit between these parties was not one of those provided for in section 677 Code of Civil Procedure. The decree does not dissolve or modify an order of injunction, so as to come within the fourth subdivision of that section, and appellants seem to have relied on the doctrine of lis pendens to prevent acquisition of rights in the judgment pending their suit. In cases not within the purview of the statute, the district court may, in its discretion, allow a supersedeas upon conditions which it determines to be proper or necessary for the protection of the parties. Cooperrider v State, 46 Neb. 84, 64 N.W. 372; Home Fire Ins. Co. v. Dutcher, 48 Neb. 755, 67 N.W. 766; Penn Mutual Life Ins. Co. v. Creighton Theatre Bldg. Co. 51 Neb. 659, 54 Neb. 228. Accordingly it was proper for the district court to make the order it did. But it should have done more. In cases of this kind it should fix not only the amount of the supersedeas bond, but the conditions thereof. Home Fire Ins. Co. v. Dutcher, 48 Neb. 755, 763, 67 N.W. 766. These conditions are often no less important for protection of the parties than the amount of the bond. They ought not to be left to the judgment or the honor of the appellant. If the district court does not fix them, the party seeking supersedeas should bring the matter to the court's attention, and proceed in some appropriate manner to have the conditions of the bond prescribed. In the case at bar it is obvious that a bond conditioned as the one given by the appellants is not adequate and would operate most unjustly to the appellee May Jansen if permitted to have the effect claimed for it. Her judgment might have been lost or greatly impaired in value by inability to collect it pending the appeal, and yet she would have had no recourse upon the bond for her damages. Unless the district court had determined that...