Northwestern Mut. Life Ins. Co. v. Keith, 764

• Citation: 77 F. 374
• Decision Date: 16 November 1896
• Docket Number: 764,765.
• Parties: NORTHWESTERN MUT. LIFE INS. CO. v. KEITH et al. SAME v. ROBY et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

77 F. 374

NORTHWESTERN MUT. LIFE INS. CO. v. KEITH et al.

SAME v. ROBY et al.

Nos. 764, 765.

United States Court of Appeals, Eighth Circuit.

November 16, 1896

A. B Jetmore and A. P. Jetmore filed briefs for appellants.

A. H Vance and M. T. Campbell filed brief for Wilson Keith and Mary I. Keith.

F. G Hentig filed brief for Henry W. Roby and Sara E. Roby.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

These cases were suits in equity which were brought by the Northwestern Mutual Life Insurance Company, the appellant against Henry W. Roby and Sara E. Roby in the one case, and against Wilson Keith and Mary I. Keith in the other, for the purpose of foreclosing mortgages on real estate situated in the city of Topeka, kansas. A decree was rendered in favor of the complainant in each case. The mortgaged property was duly sold under and by virtue of the provisions of the decree, by a special commissioner, and the amount realized in each case was found to be insufficient to satisfy the mortgage debt. The circuit court confirmed the reports of sale, but refused to render a judgment against the respective mortgagors for the amount due on the respective mortgages over and above the proceeds of the mortgage sale, which deficiency amounted in the one case to $633.75, and in the other to $974.74. The complainant below appealed, assigning for error in each case the refusal of the circuit court to render a judgment for the deficiency. The sole question to be considered, therefore, is whether the appellant was entitled, as a matter of right, to a judgment for the deficiency found to exist in the respective cases, or whether it was discretionary with the trial court to render such a judgment. Equity rule No. 92 provides:

'That in suits in equity for the foreclosure of mortgages in the circuit courts of the United States, or in any court of the territories having jurisdiction of the same, a decree may be rendered for any balance that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the collection of the same as is provided in the eighth rule of this court regulating equity practice where the decree is solely for the payment of money.'

The rules promulgated by the supreme court regulating the practice in chancery cases were adopted in pursuance of authority conferred by an act of congress (Rev.St.U.S. § 917), and for that reason they have the force and effect of law. No district or circuit court of the United States has power to adopt a practice inconsistent with those rules, or to disregard their provisions. U.S. Bank...