Omaha Loan & Trust Company v. Ayer

• Decision Date: 16 January 1894
• Docket Number: 5926
• Citation: 57 N.W. 567,38 Neb. 891
• Parties: OMAHA LOAN & TRUST COMPANY, APPELLEE, v. JARED B. AYER ET AL., IMPLEADED WITH ALEXANDER LILIENCRON ET UX., APPELLANTS
• Court: Nebraska Supreme Court

57 N.W. 567

38 Neb. 891

OMAHA LOAN & TRUST COMPANY, APPELLEE, v. JARED B. AYER ET AL., IMPLEADED WITH ALEXANDER LILIENCRON ET UX., APPELLANTS

No. 5926

Supreme Court of Nebraska

January 16, 1894

MOTION by appellee to dismiss appeal from the district court of Douglas county, and motion by appellants for leave to file a petition in error. Appeal dismissed. Motion for leave to file petition in error overruled.

Motion to dismiss appeal sustained. Motion for leave to file petition in error overruled.

John P Breen and E. R. Duffie, for appellants.

Lake Hamilton & Maxwell, contra.

OPINION

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 Rodgers' addition to the city of Omaha. The appellants Alexander Liliencron and wife were made parties defendant, and answered, alleging title to the mortgaged property. They allege further that their co-defendant 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 described in 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 Liliencron and Franciska Liliencron, 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 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 procure the allowance of a bill of exceptions until about the time of the filing of the case in this court. That fact will not, however, excuse the failure to file the transcript required by section 675 of the Code, within six months after the date of the decree appealed from.

In Schuyler v. Hanna, 28 Neb. 601, 44 N.W. 731, it was held that the filing of a transcript of the pleadings and final decree will confer upon this court...