Johnson v. Powers
| Decision Date | 24 February 1887 |
| Citation | 21 Neb. 292,32 N.W. 62 |
| Parties | JOHNSON v. POWERS. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
An order appointing a receiver, in a case brought for the foreclosure of a mortgage, without notice served on the defendant, or his solicitor, as required by section 267 of the Code of Civil Procedure, held to be void.
Money collected by a receiver, acting under a void appointment as such, may be recovered from him, by the party entitled to it, in an action for money had and received to the use of the plaintiff.
Error from Washington county.
John Lothrop, for plaintiff.
W. C. Walton, for defendant.
This action was brought in the district court of Washington county, by the plaintiff in error against the defendant in error, for certain moneys alleged to have been collected and received by said defendant, for the rent of property belonging to the plaintiff, by virtue of his appointment as receiver by said court, in a certain action then pending therein, such appointment being claimed to be void. As the cause was disposed of in the district court upon demurrer, I copy the petition at length:
“(1) Plaintiff, for cause of action, says that he is owner of lots three, four, and five, in block No. thirty, in the city of Blair, Washington county, Nebraska, and has been such owner continuously for the last past three years, and that all of said time he has been in peaceable, undisputed possession of the same, either in person or by tenant, up to the twenty-seventh day of June, 1885; that there has been, for more than two years immediately before filing this petition, and there is now, on said lots costly and valuable improvements, consisting of a good brick two-story dwelling-house, in good repair and condition, and a good two-story frame barn, wells, cisterns, fruit trees, and shrubbery, and all other necessary buildings and improvements for to make said premises very valuable as a family residence; that the rental value of said premises is, and has been for the last year, two hundred dollars a year, payable in advance; that on or about the third day of April, 1885, the Omaha Savings Bank commenced an action in this court to foreclose a mortgage on said premises, and made this plaintiff defendant, as mortgagor, and A. Castetter, E. H. Monroe, and Palmer & Ryan defendants as subsequent purchasers or incumbrancers; that on the twenty-seventh day of June, 1885, at an adjourned term of this court, the defendant A. Castetter made application to said court for the appointment of a receiver to collect the rents and profits of said premises. Such application was supported by affidavit, filed on said twenty-seventh day of June, 1885. That on said day the court appointed this defendant receiver of said rents and profits. This plaintiff further alleges that he had no knowledge or notice of said application and proceedings until several days after the receiver was appointed; that his attorney had no notice until said proceeding came up for hearing; that plaintiff was a resident of this county, and that no notice by publication was made in any manner; that he did not appear in said proceedings, either in person or by attorney, and alleges that no notice was issued or served, as is required by law, and that no notice whatever was issued or served on any of the parties or their solicitors; that, for the want of notice as is required by law, this court had no power to appoint this defendant receiver, or to make any appointment, and that said pretended appointment is void and of no effect; that this plaintiff had a good and valid defense to said proceedings, as he believes and has been advised by counsel; that he would have made said defense had he been served with notice as is required by law.
(2) That on the said twenty-seventh day of June, 1885, and all the time since, this defendant has been in possession and exercised control over said premises under said proceedings. This plaintiff...
To continue reading
Request your trial
-
Farmers' & Merchants' Bank of Holstein v. German Nat. Bank of Lincoln
...such notice, in the absence or without the consent of the party affected thereby, is invalid. Code Civ. Proc. § 274; Johnson v. Powers, 21 Neb. 292, 32 N. W. 62. But the requirements of the statute in regard to notice may be waived, and should be so regarded where the parties have appeared ......
-
Farmers & Merchants Bank of Holstein v. German National Bank of Lincoln
... ... consent of the party affected thereby, is invalid. See Code ... of Civil Procedure, sec. 274; Johnson v. Powers, 21 ... Neb. 292, 32 N.W. 62. But the requirements of the statute in ... regard to notice may be waived, and [59 Neb. 231] should be ... ...
- Johnson v. Powers