Home Fire Ins. Co. v. Dutcher

• Decision Date: 02 June 1896
• Citation: 67 N.W. 766,48 Neb. 755
• Parties: HOME FIRE INS. CO. v. DUTCHER ET AL.
• Court: Nebraska Supreme Court

48 Neb. 755

67 N.W. 766

HOME FIRE INS. CO.

v.DUTCHER ET AL.

Supreme Court of Nebraska.

June 2, 1896.

Syllabus by the Court.

1. In this state an appeal does not operate as a supersedeas, except as provided by statute, and upon the terms imposed by statute.

2. An order appointing a receiver pendente lite cannot be superseded as a matter of right during the pendency of an appeal from that order.

3. An order appointing a receiver of real property in aid of foreclosure proceedings is not an order directing the delivery of possession of real property, within the meaning of Code Civ. Proc. § 677, subd. 3.

4. In cases where the statute makes no provision for a supersedeas as a matter of right, the court may, in its discretion, allow a supersedeas upon conditions which it may affix for the protection of the parties.

5. It is within the power of this court, in its discretion, after obtaining jurisdiction of a case by appeal, to allow a supersedeas in cases not provided for by statute, and upon terms which the court may prescribe.

Appeal from district court, Douglas county; Keysor, Judge.

Action by the Home Fire Insurance Company against Warren Dutcher and others. A receiver was appointed pendente lite, and defendants appealed. Their supersedeas bond was stricken out on motion, and the receiver applied for a writ of assistance. On application by appellants for an order restraining the district court and the receiver from proceeding further pending the appeal. Granted on condition.L. D. Holmes and C. W. Young, for appellants.

V. O. Strickler, for appellee.

IRVINE, C.

The Home Fire Insurance Company instituted an action in the district court of Douglas county to foreclose a mortgage executed by Warren Dutcher on premises which he afterwards conveyed to defendant A. J. Dutcher. The petition contained allegations to the effect that the present value of the premises is less than the mortgage indebtedness, that taxes on the premises to a large amount have been suffered to become delinquent, and that waste was being committed. There was a prayer for a receiver pendente lite. The district court, upon hearing evidence on the application for a receiver, sustained said application, and appointed a receiver for the premises. From this order the defendants have appealed.

The district court, at the time of making the order, fixed the amount of the supersedeas bond at $500, and within the statutory period the defendants entered into a bond in that sum, conditioned according to the third subdivision of section 677 of the Code of Civil Procedure. This subdivision is as follows: “When the judgment, decree or order directs the sale or delivery of possession of real estate, the bond shall be in such sum as the court or judge thereof in vacation shall prescribe, conditioned that the appellant or appellants will prosecute such appeal without delay and will not during the pendency of such appeal commit or suffer to be committed any waste upon such real estate.” A motion was made to strike this bond from the files on the grounds: First, that there is no authority in law for superseding an order appointing a receiver pendente lite; and, second, that, if such an order may be superseded, the bond should be conditioned to pay the reasonable rental value of the property pending appeal. This motion the court sustained, and, an application having been made by the receiver for a writ of assistance, the appellants made application to this court for an order restraining the district court and the receiver from taking any further steps pending the appeal.

The primary question presented is that stated as the first ground of the motion to strike the bond from the files, to wit, is there any authority for superseding an order appointing a receiver pendente lite? In considering the application we are, therefore, not reviewing the order striking the bond from the files, because, if an order appointing a receiver can be superseded as a matter of right, it must be under the third subdivision of section 677, as that is the only provision which could possibly apply to such a case. In such event, the filing and approval of the bond operated as a supersedeas, and the order striking the bond from the files was a nullity. If, on the other hand, there is no authority for a supersedeas in such a case, the bond itself was a nullity, and the district court had authority to proceed in disregard of such bond. The question so presented is by no means free from difficulty. A supersedeas is now almost everywhere so much controlled by statute, and the statutes are so different in their provisions, that but little assistance can be had from the adjudications of other states. After a severe struggle it became established in England that an appeal of itself operated as a supersedeas. Following the analogy of this practice, it is held in some states that statutes providing special conditions, such as the giving of a bond, in order to affect a supersedeas, are merely restrictive in their character, and that the appeal itself works a supersedeas where there is no statute requiring a bond or a compliance with other conditions. A different doctrine has, however, been announced in this state; and it must be accepted as the established rule here that a supersedeas can be had, as a matter of right, only where it is affirmatively provided for by statute. Gandy v. State, 10 Neb. 243, 4 N. W. 1019;State v. Judges of District Court, 19 Neb. 149, 26 N. W. 723;State v. Meeker, 19 Neb. 444, 27 N. W. 427;Cooperrider v. State, 46 Neb. 84, 64 N. W. 372. Owing to this difference between the rule on the subject in this state and the rule in many others, as well as the very broad differences between our statute and most others, the cases cited on behalf of the appellants have little or no application to that before us. Thus State v. Johnson, 13 Fla. 33, was based on statutes making the allowance of a supersedeas in all cases a matter of discretion. Everett v. State, 28 Md. 190, was based on a statute quoted in Blondheim v. Moore, 11 Md. 365, expressly providing the terms of a supersedeas in such cases. Northwestern Mut. Life Ins. Co. v. Park Hotel Co., 37 Wis. 125, was based on a construction of a statute providing for supersedeas bonds in certain cases, followed by a provision fixing the terms of the bond in “all other cases.” The court held this general provision applicable to orders appointing receivers, by virtue of the doctrine already mentioned as prevailing in some places, that an appeal itself is a supersedeas unless a statute in a particular case requires some further condition to be complied with, or denies the right. That this is the Wisconsin doctrine appears more clearly, perhaps, from the case of Hudson v. Smith, 9 Wis. 122.Elliott v. Whitmore, 10 Utah, 238, 37 Pac. 459, seems to have been based on a statute like ours, and is, therefore, more nearly in point. In that case the defendant was in possession of a stream, and had appropriated the water, by means of a ditch, to his own use. The plaintiff obtained a decree entitling him to the use of a part of the water, enjoining the defendant from using that portion awarded the plaintiff, and appointing a commissioner to put into the stream a certain device which would make a partition of the water in the proportions decreed. It was held that the case fell within a statute identical with subdivision 3 of section 677 of our Code, and that the decree was superseded by a bond thereunder; the decree in effect directing the delivery of possession of real estate. It seems to us that the court thereby gave an exceedingly liberal construction to this provision. But there is this difference between the case cited and that before us: that in the Utah case the decree was final, and considered as an order for the delivery of possession of real property; it was an order for a final and perpetual delivery to the adverse party; while in the case before us the possession of property is not ordered delivered finally to the plaintiff, but to an officer of the court, to hold the same on behalf of all parties to the suit as their rights may ultimately be determined, and as a provisional remedy only. This distinction will be later adverted to. In Swing v. Townsend, 24 Ohio St. 1, the action was for the construction of a will, an order to sell real estate, and for distribution. Receivers were appointed in the court below. An appeal having been taken from the decree, the supreme court held that the appeal did not supersede the receivership, and that the powers and duties of the receivers continued notwithstanding. It would seem, however, from ...