Haugan v. Netland

• Decision Date: 16 December 1892
• Citation: 53 N.W. 873,51 Minn. 552
• Parties: HAUGAN v NETLAND ET AL.
• Court: Minnesota Supreme Court

51 Minn. 552

53 N.W. 873

HAUGANvNETLAND ET AL.

Supreme Court of Minnesota.

Dec. 16, 1892.

(Syllabus by the Court.)

1. In exceptional cases, proper for the appointment of receivers in mortgage foreclosure actions to collect and apply the rents;-as, where the mortgagor is a nonresident, or cannot be found,-the court may, in its discretion, proceed to hear the application without notice, leaving parties to move to set aside or modify the order if they shall subsequently appear. Hence it is not reversible error if the court proceed to hear such an application on less than eight days' notice served on a nonresident mortgagor outside the state. And where, in such case, he appeared specially by counsel, and objected to the hearing, and the court overruled the objection, but gave him a reasonable time to prepare to oppose the motion, and he subsequently appeared and resisted the application, held not to be error.

2. The court may, in the exercise of a sound discretion, appoint a receiver pending an action to foreclose a mortgage, where the premises are subject to a prior mortgage made by a party who is insolvent, and the premises are insufficient security for both mortgages, and the owner, being in possession of the premises, refuses to keep down the interest on such first mortgage.

Appeal from district court, Hennepin county; HOOKER, Judge.

Action by Andrew C. Haugan against Andrew O. Netland, Mons Anderson, and others, to foreclose a mortgage. From an order appointing a receiver of the mortgaged premises during the pendency of the action, defendant Mons Anderson appeals. Affirmed.

Peterson & Kolliner, for appellant.

Ueland & Holt, for respondent.

VANDERBURGH, J.

This is an appeal from an order appointing a receiver to take charge of mortgaged premises during the pendency of a suit for the foreclosure of the mortgage.

1. The appellant, who is a nonresident owner of the mortgaged premises, complains that the proceedings were irregular for want of due notice to him of the application. It is admitted that he was a nonresident absentee, and that only two days' notice of the motion which was based upon the complaint in the foreclosure suit and affidavits was given. The defendant appeared specially by his attorneys, and objected to the sufficiency of the notice; but, after saving an exception to the decision of the court overruling their motion to dismiss the application, they appeared generally, and thereupon the court postponed the hearing for one week, when, after hearing the parties, the application was granted. The general rule is to proceed only after notice, but this rule is not inflexible, so as to prevent the court from proceeding in cases where it is impracticable to give legal notice,-as in the case of absconding or nonresident defendants,-but, subject to proper limitations, ...