McCarn v. Cooley

Decision Date14 October 1890
Citation30 Neb. 552,46 N.W. 715
PartiesMCCARN v. COOLEY ET AL.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. Alleged errors and matters of exception which are not properly subjects of record must be preserved in writing, and certified as required by statute, in order to be considered by the supreme court; and affidavits in support of or in opposition to any proceeding in the court below must be embodied in a bill of exceptions.

2. A stipulation of the attorneys in a cause stating that the record is a correct transcript of the proceedings, or that the files annexed are the original files, and that the transcript may be accepted as the bill of exceptions, may be sufficient to justify the judge in the court below in signing the same as a bill of exceptions, but forms no sufficient basis for the supreme court to consider the same as a bill of exceptions without having been settled and signed as such. See Credit Foncier v. Rogers, 8 Neb. 34.

Appeal from district court, Knox county; POWERS, Judge.J. H. McIntosh, John L. Webster, and Ambrose & Strickler, for appellants.

J. H. Berryman and Holmes & Hays, for appellee.

COBB, C. J.

On the 28th day of March, 1887, the appellees and plaintiffs filed their petition in the district court of said county to foreclose a mortgage given by the appellants and defendants Eben Cooley and Phœbe, his wife, on a certain tract of land situate in said county, to-wit: The E. 1/2 of the N. E. 1/4, and the E. 1/2 of the S. E. 1/4, of section 32; the W. 1/2 of the N. W. 1/4, the W. 1/2 of the S. W. 1/4, the E. 1/2 of the S. W. 1/4, the S. E. 1/4 of the N. E. 1/4, and the S. E. 1/4 of section 33; the S. W. 1/4 of the N. W. 1/4, the W. 1/2 of the S. W. 1/4, and the S. E. 1/4 of the S. W. 1/4 of section 34, township 30, range 6 W., aggregating 760 acres, to secure to the plaintiffs the payment of $2,700 according to the terms of certain notes and bonds therein described. The mortgagors were personally served by summons on April 4, 1887. The Dakota Mortgage Loan Corporation of Boston, Mass., made defendant by publication, answered on May 19, 1887, that there was then due from the mortgagors $950 on a subsequent mortgage, and a lien, junior to that of the plaintiffs, for which judgment was asked, and distribution of the proceeds of the mortgaged premises, according to priority of liens. On the same day, a decree was taken by the plaintiffs, foreclosing their mortgage, and directing the premises to be sold by the sheriff of the county, as upon executions at law, and the proceeds brought into court to be applied to the satisfaction of the sum of $3,115, as found due, with costs and accruing costs. On the same day, a decree was entered in favor of the defendant the Dakota Mortgage Loan Corporation, as a junior lien to that of the plaintiffs on the mortgaged premises, for the sum of $850 to be satisfied accordingly, and to have execution therefor. On March 1, 1888, an order of sale was issued to the sheriff, the lands were appraised aggregating the value of $4,880, and on April 13, 1888, were sold to Eugene A. Crum, for $3,325. A motion to set aside the sale, supported by affidavits upon the following grounds, was overruled, and the sale was confirmed: (1) That the files of the cause were lost from the clerk's office, and could not be found at the time of the order of sale or the day of sale. (2) That the noticeof sale does not state the terms of sale. (3) On the day of sale there was no copy of the appraisal, or of the clerk's and treasurer's certificate, on file in the clerk's office, and the appraisement was not its true value. (4) The appraisers fixed a lower estimate than they thought the lands were worth, at the instance of the plaintiffs. (5) That one of the appraisers estimated it at $18 per acre. (6) That they did not view the land in making their appraisement. At the commencement of this action, the prior mortgage of the Phœnix Insurance Company was unpaid, and was not made a party to the proceedings of foreclosure, by reason of which the lands did not bring as much as they otherwise would have brought. (7) That said prior mortgagee has brought an action in the United States court for foreclosure in which all parties interested are included that the court may find the amount due to each lienholder. (8) That the plaintiffs agreed, prior to the bringing of this action, to take $2,500, and release their claim, and at their request the mortgage for $6,350 to the Dakota Mortgage Loan Corporation, to pay the claims of plaintiff and others, was made and placed of record, after which the plaintiffs refused to accept the amount, and the Dakota Mortgage Company refused to release its mortgage, defeating the proposition, and obstructing defendants from procuring it elsewhere, and causing the lands to be sold for less than their true value. (9) That the lands should not have been sold in the parcels as returned. (10) That the lands did not bring two-thirds of the appraised value, but sold for less than their value in cash. (11) That the mortgagors are in a position not to redeem on account of the lien of the Dakota Mortgage Loan Company, which is in collusion with the plaintiffs, and, after paying the commission to that company, there is due from it sufficient to discharge the prior liens against the lands.

It appears from the record that the sale of the mortgaged premises, in this action, was duly confirmed by regular proceedings in open court on the 24th day of May, 1888. On the 14th day of June, 1888, the Honorable ISAAC POWERS, Jr., judge of said court, by an order at chambers, after reciting that it had been made to...

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8 cases
  • McCarn v. Cooley
    • United States
    • Nebraska Supreme Court
    • October 14, 1890
  • State Ins. Co. v. Buckstaff Bros. Manuf'g Co.
    • United States
    • Nebraska Supreme Court
    • February 4, 1896
    ...Credit Foncier v. Rogers, 8 Neb. 34; State v. Knapp, 8 Neb. 436, 1 N. W. 128;Herbison v. Taylor, 29 Neb. 217, 45 N. W. 626;McCarn v. Cooley, 30 Neb. 552, 46 N. W. 715. This stipulation could have been brought into the record by a bill of exceptions, but, that not having been done, it is not......
  • State Insurance Co., of Des Moines v. Buckstaff Brothers Manufacturing Co.
    • United States
    • Nebraska Supreme Court
    • February 4, 1896
    ... ... of America v. Rogers, 8 Neb. 34; State v ... Knapp, 8 Neb. 436, 1 N.W. 128; Herbison v ... Taylor, 29 Neb. 217, 45 N.W. 626; McCarn v ... Cooley, 30 Neb. 552, 46 N.W. 715.) This stipulation ... could have been brought into the record by a bill of ... exceptions; but that not ... ...
  • Hobbs v. Hunt
    • United States
    • Nebraska Supreme Court
    • May 18, 1892
    ...9 N. W. Rep. 689;Dorrington v. Minnick, 15 Neb. 397, 19 N. W. Rep. 456;Wagon Co. v. Benedict, 25 Neb. 372. 41 N. W. Rep. 254;McCarn v. Cooley, 30 Neb. 552, 46 N. W. Rep. 715. There being no bill of exceptions in the case at bar, it will be presumed that the ruling of the court is sustained ......
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