Dodge v. Healey
| Citation | 170 N.W. 828,103 Neb. 180 |
| Decision Date | 01 February 1919 |
| Docket Number | 20291 |
| Parties | GEORGE O. DODGE, APPELLEE, v. CLARA I. HEALEY, APPELLANT |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Dodge county: FREDERICK W BUTTON, JUDGE. Reversed, with directions.
REVERSED.
J. E Daly, for appellant.
C. E Abbott, contra.
This is an action in equity to foreclose a real estate mortgage. The cause was tried to the court and a decree in favor of the plaintiff was entered. The mortgaged property was sold by the sheriff and the sale was confirmed. Thereafter the plaintiff filed his motion for deficiency judgment against the defendants, Michael T. Healey, Clara I. Healey, and Mary E. Nichols. Order to show cause why a deficiency judgment should not be rendered was entered and was served upon the defendants. The defendants Michael T. Healey and Clara I. Healey filed objections to deficiency judgment against them. On May 16, 1917, a hearing was had upon the motion for deficiency judgment and the objections thereto, and judgment for deficiency was entered against the defendants, Michael T. Healey, Clara I. Healey, and Mary E. Nichols. On May 18, 1917, the defendants Michael T. Healey and Clara I. Healey filed a motion for a new trial, which motion was, on June 11, 1917, overruled by the trial court. The defendant Clara I. Healey appealed from the deficiency judgment rendered against her, and filed her transcript in this court on August 21, 1917. The plaintiff has filed a motion to dismiss the appeal on the ground that the transcript was not filed within the time required by statute.
The plaintiff relies upon the decisions rendered by this court in Smith v. Silver, 58 Neb. 429, 78 N.W. 725, and Ogden v. Garrison, 82 Neb. 302, 117 N.W. 714. In Smith v. Silver, supra, it is said in the syllabus:
When the decision in that case was rendered the statute provided for a review in this court by proceedings in error in actions at law, and for a trial de novo in this court upon appeal in suits in equity. Appeals in suits in equity were governed by section 675 of the Code (Comp. St. 1897). We quote a portion of that section as follows:
"That in all actions in equity either party may appeal from the judgment or decree rendered or final order made by the district court, to the supreme court of the state; the party appealing shall within six months after the date of the rendition of the judgment or decree, or the making of the final order, procure from the clerk of the district court and file in the office of the clerk of the supreme court, a certified transcript of the proceedings had in the cause in the district court."
In Smith v. Silver, supra, section 675 of the Code was construed to mean just what it said in plain language, that the party appealing shall within six months after the date of rendition of the judgment or decree, or the making of the final order, procure and file in the office of the clerk of this court a certified transcript. In the year 1905 the legislature repealed section 675 of the Code, and other sections of the Code providing for a review in this court by proceedings in error of actions at law adjudicated in the district courts, and, in lieu of all these sections of the Code, passed a new act to provide for appeals to the supreme court in all cases except criminal cases. Laws 1905, ch. 174. Section 1 of this act, being section 8186, Rev. St. 1913, provides:
"The proceedings to obtain a reversal, vacation or modification of judgments and decrees rendered or final orders made by the district court, except judgments and sentences upon convictions for felonies and misdemeanors under the Criminal Code, shall be by filing in the supreme court a transcript certified by the clerk of the district court, containing the judgment, decree or final order sought to be reversed, vacated or modified, within six months from the rendition of such judgment or decree or the making of such final order or within six months from the overruling of a motion for a new trial in said cause; the filing of such transcript shall confer jurisdiction in such cause upon the supreme court."
In the year 1917 (Laws 1917, ch. 140) the legislature amended this section by changing the time for filing the transcript from six months to three months. By the act of 1905 the legislature provided a uniform procedure to obtain a reversal, vacation or modification of judgments and decrees rendered, or final orders made by district courts in all cases except criminal cases. This procedure is applicable alike to actions at law and suits in equity. Under the long-established practice in this state, a motion for a new trial must be filed and overruled before an appeal can be taken to the supreme court in an action at law; while in a suit in equity a motion for a new trial is not a necessary precedent to an appeal, yet a motion for a new trial may properly be filed in a suit in equity, and, if such motion is filed, the time for taking an appeal commences to run on the date of the overruling of the motion for a new trial, the same as in an action at law. A motion for a new trial not being a necessary precedent to an appeal in a suit in equity, if no such motion is filed, the time for taking an appeal commences to run on the date of the entry of the decree or the making of the final order appealed from. The decision in Ogden v. Garrison, supra, is not in conflict with our construction of the statute. In that case it was held: "To secure a review of an equity case in this court, the filing of a motion for a new trial in the court below is not required." In the case at bar the transcript was filed in this court within three months from the overruling of the motion for a new trial, and therefore this court obtained jurisdiction of the cause on appeal.
In the case at bar the defendant Clara I. Healey contends that the trial court erred in rendering a deficiency judgment against her for the reason that when she signed the notes and executed the mortgage sued on ...
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