Home Fire Insurance Co. v. Dutcher
| Decision Date | 02 June 1896 |
| Docket Number | 8478 |
| Parties | HOME FIRE INSURANCE COMPANY, APPELLEE, v. WARREN DUTCHER ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Douglas county. Heard below before KEYSOR, J. Submitted to supreme court on application of appellants for an order to prevent the district court and the receiver appointed below from proceeding further pending appeal. Application sustained conditionally.
Affirmed.
L. D Holmes and C. W. Young, for appellants.
V. O Strickler, contra.
Authorities cited by counsel are referred to in the opinion.
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authority in law for superseding an order appointing a receiver pendente lite; and second, that if such an order may be superseded, the bond should be conditioned to pay the reasonable rental value of the property pending appeal.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 effect 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, 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 Mutual 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. Elliot v. Whitmore, 10 Utah 238, 37 P. 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 Eaton & H. R. Co. v. Varnum, 10 Ohio St. 622, that an order appointing a receiver was not at that time in Ohio an appealable order, as it is made here by section 275 of the Code of Civil Procedure. In the Matter of the Real Estate Associates, 58 Cal. 356, it was held that an appeal from an order adjudicating insolvency and appointing a receiver did not suspend the functions of the receiver, the court saying: This case has a certain significance from the fact that section 945 of the California Code of Civil Procedure bears a close analogy to our section 677, subdivision 3; but other provisions of the California law are so different that we cannot give the case the weight which it would otherwise be entitled to.
A series of cases in Tennessee is instructive. That state has a statute which provides that "the supreme court in term or either of...
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