Jenkins Land And Live Stock Co. v. Attwood

• Decision Date: 20 February 1908
• Docket Number: 15,071
• Citation: 115 N.W. 305,80 Neb. 806
• Parties: JENKINS LAND AND LIVE STOCK COMPANY, APPELLEE, v. GARWOOD H. ATTWOOD, APPELLANT
• Court: Nebraska Supreme Court

115 N.W. 305

80 Neb. 806

JENKINS LAND AND LIVE STOCK COMPANY, APPELLEE, v. GARWOOD H. ATTWOOD, APPELLANT

No. 15,071

Supreme Court of Nebraska

February 20, 1908

APPEAL from the district court for Dundy county: ROBERT C. ORR JUDGE. Affirmed.

AFFIRMED.

Charles W. Meeker, David G. Hines, Mockett & Mattley and J. C McNerney, for appellant.

W. S Morlan and Charles T. Jenkins, contra.

ROOT, C. FAWCETT and CALKINS, CC., concur.

OPINION

ROOT, C. J.

This was an action to cancel a sheriff's deed, whereby appellant claims title to 474 acres of land in Dundy county. The facts, as we glean them from the evidence, and the admissions in the pleadings, are: That one Warner in 1889, being the owner of the fee of said lands, executed a mortgage thereon to secure the payment of his promissory note. Soon thereafter Warner sold and conveyed his equity to the Nebraska Real Estate and Live Stock Association. Appellant became the owner of the note and mortgage, and on the 30th day of September, 1892, commenced his action to foreclose the mortgage, making Warner and wife, Warner's grantee, and other persons, defendants. December 20, 1892, The Nebraska Real Estate and Live Stock Association and Alonzo L. Clark, trustee, filed their joint answer in said action, admitting all the facts alleged in the petition, and stating that the defendant corporation was the owner of the equity of redemption of all of said real estate, "and request that whatever decree may be rendered here it may be stayed for a period of nine months from the rendition of said decree." March 14, 1893, said corporation filed a simple request for a stay of execution and order of sale in said case. April 19, 1894, a decree of foreclosure was rendered. March 31, 1893, the Nebraska Real Estate and Live Stock Association sold its interest in said real estate to Alma E. Jewett. May 28, 1894, the clerk of the court issued an order of sale on said decree, and July 9, 1894, appellant purchased the real estate at sheriff's sale for the amount of his mortgage plus accrued interest. July 14, 1894, the sheriff made return to his order of sale. March 19, 1896, an entry was made on the journal of the district court in said case that "this case came on on the motion of plaintiff to dismiss said action. On due consideration whereof the court doth sustain said motion, and it is ordered that said action be, and hereby is, dismissed at plaintiff's costs." The journal entry does not recite the appearance of any party to the suit, nor that of any attorneys for plaintiff or defendants. The court's trial calendar discloses the name of an attorney for appellant, but it is not claimed he requested the entry of the dismissal. March 27, 1900, appellant by his attorney moved the court "to reinstate the above entitled cause of action and place the same on the trial docket, for the reason that it was dismissed by mistake, after decree and sale had been obtained." That same day, without notice to, or the presence of, any party adversely interested, the court found that the action had been dismissed upon the motion of certain attorneys claiming to represent appellant; that said attorneys were without authority in the premises, and that said case was wrongfully dismissed; and "it is therefore considered by the court that said case be reinstated and redocketed." Immediately thereafter the court affirmed the sale and ordered the then sheriff to execute a deed to appellant, which was done. The sheriff's deed was recorded April 9, 1900. January 28, 1905, appellee purchased from Mrs. Jewett the real estate. Appellant claims title by virtue of his sheriff's deed, and also by adverse possession. The district court canceled the sheriff's deed, the order of sale, and confirmation of said sale, and held that the decree of foreclosure was valid and unsatisfied. If the court had power through the sheriff to make the sale, or if appellant has secured title by adverse possession to the land in question, he should prevail.

Had the court power to sell the land within nine months of the decree, a request for the stay being on file within 20 days of the entry of the decree? It is our opinion that it did not. Section 477b of the code provides: "The order of sale on all decrees for the sale of mortgaged premises shall be stayed for the period of nine months from and after the rendition of said decree, whenever the defendant shall within twenty days after the rendition of the decree, file with the clerk of the court a written request for the same: Provided, that if the defendant make no such request within said twenty days, the order of sale may issue immediately after the expiration thereof." We are aware that some courts, notably Illinois, consider the sale of property on execution issued on a judgment that has been stayed a mere irregularity, to be cured by confirmation; but the trend of judicial thought in Nebraska has been to uphold and make effective the evident legislative will to furnish the debtor absolute immunity from the sale of his property when he has complied with the statutes relating to a stay of execution or order of sale. Says Chief Justice MAXWELL, in State Bank v. Green, 8 Neb. 297, 1 N.W. 210: "Upon the bond being filed and approved, the power of the court below to proceed in the case is suspended until the bond is set aside, modified, or the appellant fails to perfect his appeal within the time required by the statute." Construing the cited decision, Mr. Justice LAKE, in State Bank v. Green, 10 Neb. 130, says: "The effect of that decision was to declare invalid the execution and all that was done under it." We recognized the principle and adhered thereto in Kountze v. Erck, 45 Neb. 288, 63 N.W. 804, and it may now be said to be a long, and well-established rule in Nebraska that, pending the stay of a...