Chadron Loan & Building Association v. Smith

Decision Date19 April 1899
Docket Number8873
Citation78 N.W. 938,58 Neb. 469
PartiesCHADRON LOAN & BUILDING ASSOCIATION, APPELLANT, v. JESSIE SMITH ET AL., APPELLEES
CourtNebraska Supreme Court

APPEAL from the district court of Dawes county. Heard below before WESTOVER, J. Affirmed.

AFFIRMED.

Albert W. Crites, for appellant.

References Callanan v. Shaw, 19 Ia. 183; Chicago & S. E. R Co. v. St. Clair, 42 N.E. 225 [Ind.]; Link v Connell, 48 Neb. 574; Waples, Homestead & Exemption 714; Jarboe v. Colvin, 4 Bush [Ky.] 70.

Allen G. Fisher, contra.

HARRISON, C. J. NORVAL, J., expressed no opinion.

OPINION

HARRISON, C. J.

In an action of foreclosure for the association in the district court of Dawes county there was a decree in its favor on August 18, 1896, by which there was subjected to sale to apply in satisfaction of its mortgage lien thereon two non-adjacent lots in the city of Chadron, on each of which there was a dwelling-house, one of which was occupied by Jessie Smith and was her statutory homestead. She was the owner of both lots which were included in the mortgage and decree of foreclosure. Within the proper time she filed a request for stay of the execution of the decree, and soon thereafter for the association there was presented an application for the appointment of a receiver to take charge of the properties and collect the rents thereof. On hearing the court appointed a receiver for the one lot but refused to make any appointment applicable to the homestead. The association has appealed to this court, and in the appeal proceedings has also presented an original application for the appointment of a receiver. The transcript was filed in this court November 19, 1896, and the bill of exceptions on the 30th of the same month. The transcript was accompanied by the application to this court for a receiver. Of this application there was a hearing and on January 8, 1897, it was denied.

In the brief which was filed November 30, 1896, it was urged that this court should abandon the rule established in the opinion in the case of Eastman v. Cain, 45 Neb. 48, 63 N.W. 123, that applications similar to the one in this matter at bar should ordinarily be first made to the district courts wherein the actions were instituted. In the decision of the application herein to this court we again considered the advisability and propriety of the directions in regard to practice stated in Eastman v. Cain, and with approval. We may add that in any such case, if an appeal is taken from the order of the district court in the matter of the application for a receiver, the proceeding in this court will, on motion, be advanced for hearing and thus delay be avoided.

It was shown that the lot as to which the petition for a receiver was denied was the homestead of the mortgagor. For the association there was proof that the property was probably insufficient to discharge the mortgage debt, also that repairs were greatly needed and were not being made, that the taxes had not been paid, and the property had been sold for the delinquent taxes. On the established facts there was quite a strong showing for the relief asked,--the appointment of a receiver to collect the rents of the mortgaged property. One and of the main questions presented was, will a homestead, under the ordinary or any facts and circumstances be placed in the possession and care of a receiver? It is stated in Waples, Homestead & Exemption 719, 720: "Under some circumstances,...

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3 cases
  • Home Fire Ins. Co. v. Kuhlman
    • United States
    • Nebraska Supreme Court
    • April 19, 1899
    ... ... insurance providing that it shall be null if the building be or become vacant or unoccupied, and so remain for ten ... 626, 59 N. W. 112;Eagle Fire Co. of New York v. Globe Loan & Trust Co., 44 Neb. 380, 62 N. W. 895;Slobodisky v ... ...
  • Home Fire Insurance Company v. Kuhlman
    • United States
    • Nebraska Supreme Court
    • April 19, 1899
    ... ... frame building located in the city of Omaha. The policy ... provided that ... 626, 59 N.W. 112; Eagle Fire Co. v ... Globe Loan & Trust Co., 44 Neb. 380, 62 N.W. 895; ... Slobodisky v ... ...
  • Chadron Loan & Bldg. Ass'n v. Smith
    • United States
    • Nebraska Supreme Court
    • April 19, 1899
    ...58 Neb. 46978 N.W. 938CHADRON LOAN & BUILDING ASS'Nv.SMITH ET AL. (JOHN S. BRITTAIN DRY-GOODS CO., INTERVENER).Supreme Court of Nebraska.April 19, 1899 ... Syllabus by the Court.The remedy ... , direct defendant in the suit.Appeal from district court, Dawes county; Westover, Judge.Action between the Chadron Loan & Building Association and Jessie Smith and others. The John S. Brittain Dry-Goods Company intervened. Judgment for plaintiff. From refusal to appoint a receiver, plaintiff ... ...

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