Olson v. Union Cent. Life Ins. Co., 5439.

• Decision Date: 24 December 1929
• Docket Number: No. 5439.,5439.
• Citation: 228 N.W. 223,58 N.D. 899
• Parties: OLSON et al. v. UNION CENT. LIFE INS. CO. et al.
• Court: North Dakota Supreme Court

58 N.D. 899

228 N.W. 223

OLSON et al.

v.UNION CENT. LIFE INS. CO. et al.

No. 5439.

Supreme Court of North Dakota.

Dec. 24, 1929.

Syllabus by the Court.

Under section 7588, C. L. 1913, providing that the district court in which an action is pending may appoint a receiver in the cases therein enumerated, the district court may, after an appeal has been perfected from the judgment entered in the action, appoint such a receiver to protect and preserve property, the subject of the litigation.

After an appeal from a judgment directing the delivery of possession of real property, the trial court may appoint a receiver to harvest and conserve crops matured or about to mature thereon at the time the appeal was perfected, though the appellants in possession have filed an undertaking for a stay conditioned pursuant to section 7828, C. L. 1913, that during the pendency of such appeal they will neither commit nor suffer to be committed any waste on the property in suit then in their possession, and if the judgment is affirmed that they will pay the value of the use and occupation of such property from the time of taking the appeal until delivery of possession of the same pursuant to the judgment.

Appeal from District Court, La Moure County; A. T. Cole, Special Judge.

Action by Olaf Olson and others against the Union Central Life Insurance Company and others. From an order appointing a receiver for certain crops, and restraining plaintiffs from incumbering or disposing thereof, plaintiffs appeal. Affirmed.Robert A. Eaton, of Edgeley, for appellants.

Holt & Frame and Lawrence, Murphy & Nilles, all of Fargo, for respondent.

NUESSLE, J.

This appeal is from an order of the district court of La Moure county, appointing a receiver for certain crops and restraining the appellants from encumbering or disposing of the same. The appellants have complied with few, if any, of the requirements prescribed by the rules of practice of this court with respect to the taking of appeals, and for that reason the appeal properly should be dismissed. See rule 36, 41 N. D. 702, 180 N. W. xi. We have, however, examined into the merits of the appeal, and are of the opinion that, in any event, the order of which the appellants complain should be affirmed.

The order in question was entered on the application of the respondent and after hearing. There is no certificate of the district judge identifying the papers used by the parties on the hearing of the application, and upon which the order is based. We gather, however, from the papers which were transmitted on the appeal in the main case with the same title as this (see 225 N. W. 124), including the order from which the appeal is taken, the following:

The appellants had executed and delivered a mortgage covering certain real property belonging to them. This mortgage was foreclosed, and the property sold at foreclosure sale, in November, 1924. The sheriff's certificate was assigned to the respondent, the Union Central Life Insurance Company. No redemption was made from the sale, and a deed was issued, pursuant to the certificate upon expiration of the period of redemption. However, in September, 1925, the appellants began this action to set aside and vacate the sale. The respondent insurance company, answering, set up that it was the owner of the real property in question, and that the appellants were wrongfully in possession thereof, and prayed for an affirmative judgment quieting title in itself, and awarding it the possession of the property as against the appellants. The last pleadings were served in February, 1926. Thereafter the case came to trial on the issues as thus made, and in June, 1927, judgment was entered in favor of the respondent, adjudging it to be the owner of the said real property, quieting title in it as against the appellants, and awarding to it the possession thereof. In the meantime, and during the years 1925, 1926, and 1927, the appellants were in possession of the premises and had the use and occupancy of the same. They farmed the land, and appropriated to themselves the crop raised in the year 1926, making no accounting to the respondent therefor. They sowed the land to crop again in 1927. When judgment was entered in favor of the respondent in June, 1927, the appellants asked for a stay of execution to enable them to perfect an appeal, and a stay was granted. On or about the 1st day of August, 1927, no appeal then having been perfected, the respondent applied for the order from which the appellants here appeal. In its application and showing by affidavit the respondent set forth the facts as hereinbefore stated, and, further, that the appeal had not been perfected; that a valuable crop was about to mature on the premises; that the appellants, asserting title to the same, were about to harvest the crop; that the appellants were insolvent, and if they appropriated the crop respondent would have no effective remedy against them and would lose the same.

The matter came on for hearing pursuant to notice on the 19th of August, 1927. On that date the appellants perfected their appeal to this court in the main action, by serving their notice of appeal and undertaking. They also appeared and resisted the application for the receivership and injunction. The matter was heard by the court, and after consideration the application was granted, and an order made accordingly on August 22d. The undertaking on appeal in the main action was conditioned pursuant to section 7824, C. L. 1913, that the appellants would pay all costs and damages which might be awarded against them on the appeal, not exceeding the sum of $250, and further,...