Parmele v. Schroeder

• Decision Date: 20 March 1901
• Citation: 85 N.W. 562,61 Neb. 553
• Parties: PARMELE v. SCHROEDER ET AL.
• Court: Nebraska Supreme Court

61 Neb. 553

85 N.W. 562

PARMELE

v.SCHROEDER ET AL.

Supreme Court of Nebraska.

March 20, 1901.

Syllabus by the Court.

1. In an ordinary action of foreclosure, appellants were made parties, and sought to be charged personally for any deficiency which might remain after the sale of the mortgaged premises. In the decree of foreclosure the appellants were found personally liable for the mortgage indebtedness, and in the decree it was adjudged that, if the money arising from the sale of the property shall be insufficient to satisfy the amount found due, the sheriff shall specify the amount of such deficiency, and upon confirmation of such report the mortgagee, upon application, is entitled to a judgment for deficiency against appellants, and to execution for the amount of the deficiency found due. Held, the decree not to be final and appealable as to appellants.

2. A deficiency judgment in an action to foreclose a real-estate mortgage, under the provisions of our Code of Civil Procedure as it existed prior to the amendment of 1897, could not be rendered until the coming in of the report of the sale of the mortgaged property. Devries v. Squire, 76 N. W. 16, 55 Neb. 438.

3. A decree is not final and appealable until the court has finally determined and disposed of the entire controversy between the parties, so that nothing remains to be done except to ministerially execute its provisions in the court in which it is rendered.

4. The finding of a trial court of the amount of a deficiency on the incoming of the report of the sale of the mortgaged premises, and rendition of a judgment therefor, are judicial functions.

5. Former opinion, Parmele v. Schroeder, 81 N. W. 506, 59 Neb. 553, adhered to.

On rehearing. Affirmed.

For former opinion, see 81 N. W. 506.Morris & Marple, A. N. Sullivan, E. E. Aylsworth, Duffie & Van Dusen, and Duffie, Gaines & Kelby, for appellants.

Byron Clark, C. A. Rawls, Beeson & Root, and R. B. Windham, for appellee.

HOLCOMB, J.

We have heretofore decided that the appeal taken in this action should be dismissed because the decree, as against the appellants, was not final, and therefore not appealable. Parmele v. Schroeder, 59 Neb. 555, 81 N. W. 506. A motion for a rehearing, accompanied by a very able brief, led us to the conclusion that there was sufficient merit in the contention of appellant's counsel to justify a re-examination of the question. We have taken pains to quite fully examine the authorities to which our attention has been called by counsel on both sides of the controversy, and, after a careful consideration of the subject in the light of all the information obtainable, we are more firmly convinced that the conclusions reached and announced in the first opinion are sound, well grounded in principle, and should be adhered to.

The suit was an ordinary action in equity for the foreclosure of a real-estate mortgage, the sale of the premises mortgaged to satisfy the amount found due, and to charge the appellants personally with any deficiency that might remain after the sale of the mortgaged property, and the application of the proceeds to pay the mortgage debt. The court found the appellants personally liable for the mortgage indebtedness, and in the decree it was adjudged that, if the money arising from the sale of the property shall be insufficient to satisfy the amount found due, the sheriff shall specify the amount of such deficiency, and that upon confirmation of such report the mortgagee, upon application, is entitled to a judgment for deficiency against appellants, and entitled to execution for the amount of the deficiency found due. By section 847 of the Code of Civil Procedure, as it existed prior to the amendment of 1897, it is provided: “When a petition shall be filed for the satisfaction of a mortgage, the court shall not only have the power to compel the delivery of the possession of the premises to the purchaser thereof, but on the coming in of the report of the sale, the court shall have power to decree and direct the payment by the mortgagor of any balance of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in the cases in which such balance is recoverable at law; and for that purpose may issue the necessary execution as in other cases, against other property of the mortgagor;” and in section 649 provisions are made for bringing in other persons than the mortgagor, who may be obligated to pay the debt for the satisfaction of which the proceedings are instituted, and in the same manner to decree payment of any deficiency as to such other persons. While the appellants' counsel endeavor to make a distinction between the procedure under the two sections referred to, we are disposed to the view that the latter should be construed with reference to and in connection with the former, which is controlling as to the authority of the trial court to render a personal judgment in such proceedings. As to a judgment for a deficiency, it seems quite clear, under these provisions, that it cannot be determined or rendered until after a report of the sale of the mortgaged premises, a confirmation thereof, and a judicial determination by the trial court as to the amount for which the judgment may be rendered. In the proceedings and decree of foreclosure no judgment is in fact rendered against appellants. No amount of recovery is mentioned, nor is it sought to be determined. At most, the decree finds that a personal liability exists against them, and decrees or declares that upon certain contingencies, which may or may not arise, a judgment may be applied for and obtained on the incoming of the report of the officer of the sale of the mortgaged property. It cannot, we think, be said that this is a final decree; that, as to the issues between the appellants and the mortgagees, it disposes of the controversy between them, and leaves nothing to be done save to carry out and enforce the decree by those acting only in a ministerial capacity. It is only an interlocutory decree, litigating to a certain point the issues in controversy, where the litigation is suspended, and leaves yet another and future judicial order and action to be taken before their rights are ultimately and finally adjudicated and determined. It has only the force and effect of a special finding or order that the appellants are liable upon the indebtedness for a judgment in personam if, after the report of the sale of the property, a deficiency exists. It lacks an essential element to make it a judgment or final decree in fact, and other and subsequent action by the court in the exercise of its judicial functions is absolutely necessary before there is a final adjudication concluding the rights of the parties, and giving to it the character of a final order, decree, or judgment, from which an appeal will lie. The decree does not purport to award any personal judgment against appellants. They can in no way be injured or damnified until something further is done, of a judicial character, upon which a process can issue. No sum of money is awarded appellees upon which a general execution will rest, and no execution can issue. Nor can the decree as to appellants be enforced by ministerial acts to carry it into execution in the future. Further exercise of the power of the court, acting judicially, must be resorted to before the rights of the parties are effectually and finally determined with respect to a judgment in personam for any deficiency that may exist after the exhaustion of the security pledged for the payment of the debt.

This court is committed to the doctrine that no decree or judgment for a deficiency in a foreclosure suit can be rendered until after the report of the sale of the mortgaged premises, and the application of the proceeds to the satisfaction of the mortgage debt. In the case at bar the wording of the decree cannot, we think, be construed as a finality, in decreeing or adjudging any recovery whatever against appellants. It only purports to decree that on the incoming of the report of the sale of the mortgaged premises, if the money arising therefrom be insufficient to satisfy the...