Parmele v. Schroeder

• Decision Date: 03 January 1900
• Citation: 59 Neb. 553,81 N.W. 506
• Parties: PARMELE ET AL. v. SCHROEDER ET AL. DEWEY v. SCHROEDER ET AL.
• Court: Nebraska Supreme Court

59 Neb. 553

81 N.W. 506

PARMELE ET AL.

v.SCHROEDER ET AL.

DEWEY

v.SCHROEDER ET AL.

Supreme Court of Nebraska.

Jan. 3, 1900.

Syllabus by the Court.

1. In an action of foreclosure the decree in personam does not become final until after the sale of the property and entry of judgment for the deficiency.

2. In a foreclosure suit a defendant who is adjudged liable for any deficiency remaining after a sale of the property may file exceptions to the appraisement, without forfeiting his right to appeal from the final judgment in the case.

3. A decree is not final if anything remains to be done by the court before it can be executed.

4. An appeal from a decree of foreclosure by a defendant who objects only to the entry of a deficiency judgment against him is premature, if taken before the rendition of such judgment.

Appeal from district court, Cass county; Ramsey, Judge.

Actions by C. H. Parmele against Emma Schroeder and others, and by Anna M. Dewey against the same defendants. On the death of Parmele, C. C. Parmele and others were substituted as plaintiffs. Judgment for plaintiffs, and defendants John Linder and others appeal. Dismissed.

Morris & Marple, E. E. Aylesworth, Duffie & Van Dusen, and A. N. Sullivan, for appellants.

Byron Clark, C. A. Rawls, Allen Beeson, Jesse L. Root, and R. B. Windham, for appellees.

SULLIVAN, J.

These actions, which have been consolidated, and are submitted together, were instituted in the district court of Cass county to foreclose real-estate mortgages executed by Fred and Emma Schroeder. Renneau, Linder, and Hahn were made defendants, on the theory that they had purchased the mortgaged premises of the Schroeders, and had, as a part of the transaction, assumed and agreed to pay the several items of indebtedness secured by the mortgages. The trial court rendered a decree of foreclosure in the usual form, and at the same time fixed and established the liability of appellants for any deficiency remaining after the sale of the property and the due application of the proceeds. The appellants contend that they never accepted the deed from the Schroeders for the property covered by the mortgages in suit, and that they have, therefore, no interest in such property. They find no fault with the decree of foreclosure, and only ask for a reversal of the judgment so far as it makes a possible deficiency a personal charge against them.

The first question for decision is whether the appellants have by their conduct forfeited their right to prosecute an appeal in this case. We think they have not. It is true that they, or at least one of them, filed exceptions to the appraisement of the property which was made for the purpose of a sale under the decree of foreclosure. These exceptions were called to the attention of the...