Laune v. Hauser

• Decision Date: 08 June 1899
• Citation: 79 N.W. 555,58 Neb. 663
• Parties: LAUNE v. HAUSER ET AL.
• Court: Nebraska Supreme Court

58 Neb. 663

79 N.W. 555

LAUNE

v.HAUSER ET AL.

Supreme Court of Nebraska.

June 8, 1899.

Syllabus by the Court.

1.A receiver will not be appointed on foreclosure when the debtor is insolvent merely because the property at some future time may become insufficient to pay the mortgage debt.

2.Ordinarily a receiver will not be appointed in a foreclosure suit when the mortgaged property is the homestead of the mortgagor.

Appeal from district court, Lancaster county; Cornish, Judge.

Action by Jane H. Laune against Louisa J. Hauser and others.Judgment for plaintiff.From an order refusing to appoint a receiver, Cassius L. Laune, purchaser at foreclosure, appeals.Affirmed.Rose & England, Roscoe Pound, and S. B. Laune, for appellant.

Daniel F. Osgood, for appellees.

NORVAL, J.

A decree was entered in this cause in the district court foreclosing a realestate 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 20 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...