Jacobs v. Gibson

• Decision Date: 16 October 1879
• Citation: 2 N.W. 893,9 Neb. 380
• Parties: JOHN G. JACOBS, APPELLEE, v. JAMES S. GIBSON, APPELLANT
• Court: Nebraska Supreme Court

2 N.W. 893

9 Neb. 380

JOHN G. JACOBS, APPELLEE, v. JAMES S. GIBSON, APPELLANT

Supreme Court of Nebraska

October 16, 1879

APPEAL from Douglas county. It was an action brought to foreclose a mortgage given by Jacob Gish, deceased, to John G. Jacobs the plaintiff, on the 12th day of March, 1874, to secure the purchase money in part of the lot upon which the mortgage was given. The purchase price for which the lot was sold was $ 9,000, of which $ 2,000 was paid in cash at the time of purchase and three notes given for the balance, one for $ 2,000 payable in one year, one for $ 3,000 payable in two years, and one for $ 2,000 payable in three years, and all bearing interest at 12 per cent from date. The first note was paid in full, and the interest on the other two notes was paid to April 1, 1877. On the 21st day of February, 1878, the said Gish died, leaving a widow and three minor children, and on the 25th day of March, 1878, J. S. Gibson was duly appointed administrator with the will annexed of said Gish. On the 3d day of April, 1878, after the administrator had entered upon the discharge of his duties and had taken possession of the mortgaged premises and leased them to the purchaser of the stock for the term of six months, this action for the foreclosure of the mortgage was commenced, and an application for the appointment of a receiver to take charge of the mortgaged property, and to rent the same and receive and collect the rents, accompanied the commencement of the action. This application came on to be heard on the 22d day of April, 1878, upon affidavits on behalf of both parties, and was denied, "with leave to plaintiff to renew the the same at the rendition of a final decree herein or at the next (June, A.D. 1878) term of this court." Afterwards, on the 27th day of July, 1878, SAVAGE, J., at chambers, made an order appointing a receiver "to take charge of rent and collect the rents from that portion of said mortgaged premises," etc. From the order appointing the receiver, Gibson, the administrator, appeals.

AFFIRMED.

George W. Doane, for appellant, cited Gen. Stat., 315, sec. 202 Id., 307, sec. 164. High on Receivers, secs. 693, 695, 707. Barclay v. Lord Reay, 2 Hare, 306. Poythress v. Poythress, 16 Geo., 406. Orphan Asylum v. McCartie, Hopkins Ch., 429. Harrup v. Winslet, 37 Ga. 655. Dougherty v. McDougald, 10 Ga. 121. Powell v. Quinn, 49 Ga. 523. Johns v. Johns, 23 Ga. 31. Fairbairn v. Fisher, 4 Jones Eq., 390. Du Val v. Marshall, 30 Ark. 230. Gray v. Gaither, 74 N.C. 237. Powell v. Quinn, 49 Ga. 523. Chautauqua Co. Bank v. White, 3 Selden, 252. 2 Story's Eq. Juris., sec. 836. Middleton v. Dodwell, 13 Ves., 266. Edw. on Ref., 36, 356. 1 Van Santvoords Eq. Pr., 386, 387, 396. Jenkins v. Jenkins, 1 Paige, 243. Callanan v. Shaw, 19 Iowa 183. Warner v. Gouverneur's Ex's., 1 Barb., 36. Shotwell v. Smith, 3 Edw., 588.

Redick & Connell, for appellee.

OPINION

LAKE, J.

In the appointment of a receiver, especially in a foreclosure case, very much must be left to the discretion of the district judge, and unless it is made to appear that this discretion has been exercised unwisely and to the injury of the party complaining, this court will not interfere.

This is an action for the foreclosure of a mortgage upon real property, and the application for the appointment of the receiver was made under the last clause of the second subdivision of sec. 266 of the code of civil procedure, which provides that it may be made "in an action for the foreclosure of a mortgage when the mortgaged property is in danger of being lost, removed, or materially injured, or is probably insufficient to discharge the mortgage debt." [Gen. Stat., 568.]

A careful examination of the evidence upon which the district judge acted in...