Omaha Loan & Trust Co. v. Ayer

• Decision Date: 16 January 1894
• Citation: 38 Neb. 891,57 N.W. 567
• Court: Nebraska Supreme Court
• Parties: OMAHA LOAN & TRUST CO. v. AYER ET AL.

38 Neb. 891

57 N.W. 567

OMAHA LOAN & TRUST CO.

v.AYER ET AL.

Supreme Court of Nebraska.

Jan. 16, 1894.

Syllabus by the Court.

1. The provision of section 675 of the Code for the taking of appeals within six months after the date of the decree or final order appealed from is mandatory, and a compliance therewith essential in order to confer jurisdiction upon this court, unless the failure is in no wise attributable to the laches of the appellant.

2. The fact that the appellant, through no fault or negligence of his own, is unable to procure the allowance of a bill of exceptions within the time allowed for taking an appeal, will not excuse the filing of the transcript required by law within six months after the date of the decree or order appealed from.

3. The appellant will be permitted to file a petition in error in this court upon the dismissal of his appeal, in order to secure a review of the decree appealed from upon exception, provided such proceedings be commenced within one year from the date of such order or decree.

4. The case of Bazzo v. Wallace, 20 N. W. 315, 16 Neb. 290, distinguished.

Appeal from district court, Douglas county; Wakeley, Judge.

Action by the Omaha Loan & Trust Company against J. B. Ayer and others to foreclose a mortgage. There was decree for plaintiff, and defendants appealed. Appeal dismissed, and motion for leave to bring error denied.John P. Breen and E. R. Duffie, for appellants.

Lake, Hamilton & Maxwell, for appellee.

POST, J.

This was an action by the appellee, the Omaha Loan & Trust Company, in the district court of Douglas county, for the foreclosure of a mortgage executed by J. B. Ayer on lots 1, 2, and 3, in block 10, in Rodger's addition to the city of Omaha. The appellants Alexander Lilliencron and wife were made parties defendant, and answered, alleging title to the mortgaged property. They allege further that their codefendant Ayer by means of fraud and falsehood induced them to execute in his name a deed by which they conveyed to him the legal title to said property, and that, while holding such legal title, he executed the mortgage describedin the petition, in fraud of their rights. They also charge that the plaintiff accepted said mortgage and made the loan represented thereby with full knowledge of their rights. The reply puts in issue all of the above allegations. On the 6th day of January, 1892, a final decree was rendered in favor of the plaintiff in accordance with the prayer of the petition. On the 5th day of January, 1893, appellants filed in this court their bill of exceptions, and a transcript of the proceedings in the district court, accompanied by a motion in the following language: “And now, on this 5th day of January, 1893, the defendant cross petitioners herein, Alexander Lilliencron and Franciska Lilliencron, file in this court their transcript of the record and bill of exceptions in this case, and, reserving the right to make application hereafter to this court to have this whole case reviewed on petition in error if this court shall deem and decide that this appeal has not been taken in time, they ask that this case may be heard and considered as upon appeal, and shall be heard and determined as though filed in this court within six (6) months from the rendition and filing of the decree herein. In asking this, and as a reason therefor, they refer to the showing on file with their bill of exceptions as to the diligence used in endeavoring to settle their bill of exceptions in the lower court, and the unavoidable delay in having their appeal perfected within the time provided by statute.” No action was taken on the above motion, nor was it called to our attention until the 28th day of June, 1893, on which day a motion was made by appellee to dismiss the appeal on the ground that it was not taken within the time allowed therefor by law. Appellants, it is conceded, show by the affidavits referred to in their motion that they were unable, through no fault or negligence of their own, to...