Kountze v. Erck

• Decision Date: 18 June 1895
• Docket Number: 7749
• Citation: 63 N.W. 804,45 Neb. 288
• Parties: HERMAN KOUNTZE v. JOHN H. ERCK
• Court: Nebraska Supreme Court

63 N.W. 804

45 Neb. 288

HERMAN KOUNTZE v. JOHN H. ERCK

No. 7749

Supreme Court of Nebraska

June 18, 1895

MOTION by plaintiff to vacate a bond given to supersede confirmation of sale and deficiency judgment rendered by the district court of Douglas county, and to quash the bill of exceptions. The case was heard below before AMBROSE, J. Motion overruled in part and sustained in part.

Motion overruled in part and sustained in part.

Winfield S. Strawn, for the motion.

George O. Calder, contra.

OPINION

NORVAL, C. J.

An action was instituted in the court below by Herman Kountze against John H. Erck to foreclose a mortgage on certain real estate in the city of Omaha, executed by the defendant to the plaintiff to secure the payment of a promissory note calling for $ 7,775.62, with seven per cent interest thereon from date thereof until paid. Subsequently, and on the 30th day of December, 1893, the court found that there was due the plaintiff upon his note and mortgage the sum of $ 8,589.75, and that he was entitled to a foreclosure of the mortgage as prayed. Judgment and decree were entered in accordance with these findings, and a special master commissioner was appointed to make the sale. The defendant filed with the clerk a request for stay of the order of sale and after the expiration of the stay, an order of sale was issued, and the property sold thereunder. The defendant presented objections to the confirmation of the sale, which the court overruled, the sale was confirmed, and deficiency judgment was rendered in favor of the plaintiff and against the defendant in the sum of $ 5,057.52. To all of which the defendant excepted. Time was given him in which to reduce his exceptions to writing, and on his application the court fixed the amount of supersedeas bond in the sum of $ 100 to be given to stay the execution of the order of confirmation. On the next day the defendant, with one surety, entered into a supersedeas bond to the plaintiff in the above sum of $ 100 conditioned "that if the said John H. Erck shall prosecute such appeal without delay and will not during the pendency of the appeal commit or suffer to be committed any waste upon the real estate in controversy, then the obligation shall be null and void, otherwise to remain in full force and effect." This bond was presented to filed with, and approved by the clerk of the district court as by law provided. Subsequently, the plaintiff submitted a motion to vacate said order fixing the amount of the supersedeas bond and to require the defendant to give bond with approved surety in the sum of double the amount of deficiency judgment entered, which motion the court overruled, and the plaintiff excepted thereto. The plaintiff has procured and filed in this court a transcript of the proceedings, together with the defendant's original bill of exceptions, and had the case docketed as an appeal.

There is submitted for our determination the following motion presented by the plaintiff, to-wit:

"1. To vacate the bond herein given to supersede the confirmation of sale and deficiency judgment herein rendered, for the reason that the amount of said bond is wholly inadequate to meet the case and wholly insufficient to protect the interest thereby superseded.

"2. Subject to the foregoing, to require from the appellant an approved bond in double the amount of the deficiency judgment herein rendered, and one conditioned to pay interest on the amount found due appellee--all as a condition of superseding the order of confirmation of sale and the judgment rendered thereon.

"3. Subject to both the preceding provisions, to order that the bond given shall not operate as a supersedeas of the deficiency judgment herein, even if held sufficient to supersede the order of confirmation of the sale.

"4. That if such bond is held of any value in this case as to the amount, another bond be required to be given conditioned to pay interest upon the amount of the sale till the final decision of this case.

"5. To strike from the record and files in this case the pretended bill of exceptions, for the reasons: (1) That the same was not, within ten days after being returned by plaintiff with his proposed amendments thereto, presented or offered to be presented by the party seeking the settlement of said proposed bill, to the judge who heard the cause, upon five days' notice or otherwise; (2) that said pretended bill of exceptions was not made up, or offered to be made up of the evidence used on the motion to set aside the appraisement made in this case, or objections to the confirmation of said sale; and there is no law allowing the making a bill of exceptions of alleged copies of evidence."

The questions presented for consideration by the first four subdivisions of the above motion involve the construction of section 677 of the Code of Civil Procedure, which provides for the giving of supersedeas bonds in appeals in actions in equity. This section declares: "No appeal in any case in equity, now pending and undetermined, or which shall hereafter be brought, shall operate as a supersedeas unless the appellant, or appellants, shall, within twenty days next after the rendition of such judgment or decree, or the making of such final order, execute to the adverse party a bond with one or more sureties as follows: First--When the judgment, decree, or final order appealed from, directs the payment of money, the bond shall be in double the amount of the judgment, decree, or final order, conditioned that the appellant, or appellants, will prosecute such appeal without delay, and pay all condemnation money and costs which may be found against him, or them, on the final determination of the cause in the supreme court. Second--When the judgment, decree, or final order directs the execution of a conveyance or other instrument the bond shall be in such sum as shall be prescribed by the district court, or judge thereof in vacation, conditioned that the appellant, or appellants, will prosecute such appeal without delay, and will abide and perform the judgment or decree rendered, or final order which shall be made by the supreme court in the cause. Third--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...