Laune v. Hauser

Decision Date08 June 1899
Docket Number10457
PartiesJANE H. LAUNE, ADMINISTRATRIX, APPELLANT, v. LOUISA J. HAUSER ET AL., APPELLEES, AND CASSIUS L. LAUNE, APPELLANT
CourtNebraska Supreme Court

APPEAL from the district court of Lancaster county. Heard below before CORNISH, J. Affirmed.

AFFIRMED.

Halleck F. Rose, Wellington H. England, Roscoe Pound, and S. B Launc, for appellants.

References as to appointment of receiver where mortgaged premises are occupied as a homestead: Lowell v. Doe, 44 Minn 144; Bromley v. McCall, 18 S.W. 1016; Callanan v. Shaw, 19 Ia. 183; Cone v. Combs, 18 F. 576; Hoge v. Hollister, 8 Baxt. [Tenn.] 533; Harris v. United Savings Fund & Investment Co., 146 Ind. 265; Schreiber v. Cary, 48 Wis. 208; Marshall-Illsley Bank v. Cady, 77 N.W. 831 [Minn.].

Daniel F. Osgood, contra:

The law authorizing appointment of a receiver in mortgage-foreclosure does not apply to a case where the premises are occupied as a homestead. (Chadron Loan & Building Ass'n v Smith, 58 Neb. 469.)

OPINION

NORVAL, J.

A decree was entered in this cause in the district court foreclosing a real estate mortgage, upon which an order of sale issued, the property sold thereunder to one Cassius L. Laune, and the sale in all respects approved and confirmed. Within twenty days from the confirmation Louisa J. Hauser, one of the mortgagors, gave a supersedeas bond, in the sum fixed by the court, for the purpose of staying proceedings during the pendency of an appeal. Subsequently the plaintiff and said Cassius L. Laune, purchaser, applied to the district court for the appointment of a receiver, which application was refused. Louisa J. Hauser appealed from the order confirming the sale and the plaintiff and Cassius L. Laune prosecuted a cross-appeal from the order denying the appointment of a receiver, which cross-appeal has been advanced by this court for hearing, and a submission taken of that branch of the cause. No controverted question of fact is presented for consideration, since no bill of exceptions containing the evidence has been preserved. The findings of the trial court responsive to the issues, therefore, must control.

It appears from the findings that Louisa J. Hauser, who is in possession of the mortgaged premises, and who alone executed the note secured by the mortgage, is insolvent and financially irresponsible, and it is insisted that a receiver should be appointed because the mortgaged property is wholly insufficient to pay the debt. If the premises were true, the conclusion of counsel stated above might be irresistible; but the record fails to show the mortgaged premises inadequate to pay the claim of plaintiff, while on the other hand the court below found that the amount of the debt, interest, taxes, and costs aggregated the sum...

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