Dahlsten v. Libby

• Citation: 175 N.W. 655,104 Neb. 84
• Decision Date: 26 December 1919
• Docket Number: 20940
• Parties: PETER DAHLSTEN, TRUSTEE, APPALLEE, v. BERTHA S. LIBBY ET AL., DEFENDANTS: GEORGE W. WYANT, APPELLANT
• Court: Nebraska Supreme Court

175 N.W. 655

104 Neb. 84

PETER DAHLSTEN, TRUSTEE, APPALLEE, v. BERTHA S. LIBBY ET AL., DEFENDANTS:

GEORGE W. WYANT, APPELLANT

No. 20940

Supreme Court of Nebraska

December 26, 1919

APPEAL from the district court for Wheeler county: JAMES R. HANNA JUDGE. Remanded, with directions.

Cause remanded, with directions.

J. M Shreve and T. J. Doyle, for appellant.

J. R Swain, contra.

MORRISSEY C. J. SEDGWICK and ALDRICH, JJ., not sitting.

OPINION

MORRISSEY, C. J.

This suit was commenced in the district court for Wheeler county to foreclose a real estate mortgage. The court rendered a decree of foreclosure. There was sale of the mortgaged premises; the sale was confirmed, and this is an appeal from the order of confirmation.

Plaintiff filed a motion to dismiss the appeal for the reason, among others, that more than three months elapsed between the making of the order overruling defendants' objections and confirming the sale and the date of filing the transcript in this court. The record, so far as it relates to this assignment, may be summarized as follows: The sale was confirmed June 3, 1918; the order of confirmation was filed with the clerk of the district court, June 12, 1918, but the clerk did not spread it on the journal until December 31, 1918. The appeal was docketed in this court, January 29, 1919, less than 90 days from the time the order was spread upon the journal. "The time for taking an appeal from the district court to the supreme court begins to run when the final judgment is entered of record." In re Estate of Getchell, 98 Neb. 788, 154 N.W. 537.

The other grounds urged in support of the motion to dismiss may be considered together. It is said that there is no party before the court who has a right to prosecute the appeal; that defendants Wyant have sold the land, and therefore have no interest in the subject-matter of the suit; that their grantee, who took by warranty deed prior to the confirmation, is not complaining of the order of the district court, nor is he in a position to do so, since he purchased while suit was pending, and with notice of the suit. These objections are not well taken. Even though the Wyants have sold the land, they are still entitled to show that the confirmation is erroneous, in order to protect themselves against liability under the warranty deed which they have given. Plaintiff, therefore, is not entitled to a dismissal of the appeal on any of the grounds advanced.

By showing, filed by appellee, it is made to appear that on November 1, 1918, plaintiff entered into an agreement with one David E. Chipps, whereby, for the consideration of $ 4,250, plaintiff agreed to convey the real estate to Chipps and on or about March 1, 1919, apparently in compliance with the agreement just mentioned, plaintiff assigned all his interest under the decree to Chipps, for the consideration mentioned in the original contract. Plaintiff reserved, however, "the right to collect the rent for the season of 1918, under the supersedeas bond given for appeal." After the order of confirmation, from which this...