Ecklund v. Willis

• Decision Date: 20 November 1894
• Parties: ECKLUND v. WILLIS ET AL.
• Court: Nebraska Supreme Court

42 Neb. 737

60 N.W. 1026

ECKLUND

v.WILLIS ET AL.

Supreme Court of Nebraska.

Nov. 20, 1894.

Syllabus by the Court.

1. An alleged error not brought to the attention of the trial court will not be considered by this court on a review of the case by petition in error.

2. A finding based upon conflicting testimony will not be set aside unless found to be clearly wrong.

3. Held, that the evidence was sufficient to authorize the appointment of a receiver to take charge of the mortgaged premises, and to collect the rents and profits accruing therefrom.

4. The taking of a stay of the order of sale under a decree of foreclosure is a waiver of all errors in the proceedings in the case prior to the obtaining of such stay.

Appeal from district court, Lancaster county; Field, Judge.

Action by Alfred Ecklund against Elijah J. Willis and others to foreclose a mortgage. Judgment for plaintiff, and defendants appeal. Affirmed.B. F. Johnson and T. F. Barnes, for appellants.

Thos. C. Munger, for appellee.

NORVAL, C. J.

Plaintiff, and appellee, filed a petition in the district court to foreclose a mortgage upon real estate in North Lincoln, and in his petition he applied for the appointment of a receiver to collect the rents and profits, on the ground that the mortgaged premises are insufficient security for plaintiff's claim, and the insolvency of the defendants. Subsequently, at the September term, 1891, of said court, upon due notice to the defendants, Paul F. Clark was appointed receiver of the property to take charge of the same, and collect the rents and profits accruing therefrom, who gave bond in the sum fixed by the court, and the plaintiff likewise executed a bond to the defendants, with approved sureties, in the sum of $1,000. At the February term, 1892, the defendant Elijah J. Willis filed a motion to vacate the order appointing a receiver, which motion was denied by the court, and he excepted to the ruling. At the same term a decree of foreclosure was rendered, and the defendants filed a request for a stay, in accordance with the provisions of the statute. The defendant Elijah J. Willis appeals from the overruling of his motion to vacate the order appointing a receiver.

The first point made in the brief of appellants is that the receiver did not give a bond in a large enough sum. A sufficient answer to this is that neither when the order appointing a receiver and fixing the amount of his bond was made, nor in the motion filed to vacate such order, was any objection urged as to the size of the bond required. If appellant desired that question reviewed, he should have presented the same to the trial court in his motion to vacate, and obtained its ruling thereon. We have to do alone with the decision of the lower court in the motion to vacate its order appointing a receiver, and questions not raised therein cannot be urged as a ground for reversal. Hurford v. Baker, 17 Neb. 443, 23 N. W. 339.

It is lastly insisted that the appointment of a receiver was unnecessary in this case....