Penn Mut. Life Ins. Co. v. Creighton Theater Bldg. Co.

• Decision Date: 18 May 1897
• Citation: 51 Neb. 659,71 N.W. 279
• Parties: PENN MUT. LIFE INS. CO. v. CREIGHTON THEATER BLDG. CO. ET AL.
• Court: Nebraska Supreme Court

51 Neb. 659

71 N.W. 279

PENN MUT. LIFE INS. CO.

v.CREIGHTON THEATER BLDG. CO. ET AL.

Supreme Court of Nebraska.

May 18, 1897.

Syllabus by the Court.

1. An appealable interest exists when the judgment or decree so affects a party or privy to the record that he would derive a substantial benefit from its modification or reversal.

2. Consequently, on a motion to dismiss an appeal on the ground that the appellants are without an appealable interest, the question is not whether on the merits they are entitled to a reversal of the order appealed from, but it is whether the record shows that they are in the attitude of parties claiming a substantial right defeated by the order.

3. A bidder at a judicial sale, whose bid has been accepted, may appeal from an order setting the sale aside.

4. And where the report of sale is ambiguous as to the acceptance of the bid, but affords a fair basis for contention that a particular bid was accepted, that bidder may appeal from the order, and on motion to dismiss the appeal the court will not inquire whether the contention is well founded and the appellant entitled to a reversal.

5. The third subdivision of section 677 of the Code of Civil Procedure, providing for superseding orders directing the sale or delivery of possession of real estate on giving bond not to suffer or commit waste, contemplates appeals by the owner or party in possession, and has no application to an appeal by a purchaser from an order setting aside a sale and directing a resale.

6. But, in cases not within the statute, the district court may in its discretion allow a supersedeas on proper terms, and should do so where the appellant's rights will be jeopardized if the order is not superseded, and no party will be injured beyond the protection of a bond by superseding the order.

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

Action by the Penn Mutual Life Insurance Company against the Creighton Theater Building Company and others to foreclose a mortgage, in which there was a decree for plaintiff. A sale was made at which bids were interposed by Abraham L. Reed and another which were claimed to have been accepted, and from an order setting aside the sale, and directing a resale, said bidders appeal. On motions to dismiss and to vacate the allowance of a supersedeas. Motion to dismiss overruled. Supersedeas vacated, with directions.W. D. Beckett and R. S. Hall, for appellants.

Montgomery & Hall and John L. Webster, for appellee.

IRVINE, C.

The Penn Mutual Life Insurance Company brought an action in the district court of Douglas county to foreclose a mortgage made by the Creighton Theater Building Company. This proceeded to decree, and on the 30th of January, 1897, the mortgaged property was offered for sale at 10 o'clock a. m. As to what occurred at the sale, we quote as follows from the master's report: “I received two bids for said property, as follows: From Abraham L. Reed and Freeman P. Kirkendall, by William D. Beckett, their attorney, I received a bid of $117,000, at 10:57 o'clock a. m., that sum being more than two-thirds of the appraised value of said property. No other bids having been received by 11 a. m., I accepted from said bidders the sum of $20,000 upon said bid, deeming it unnecessary to require the whole amount of said bid to be deposited with me until just prior to the confirmation. Being informed at that time that other bids might be made, I deemed it my duty to receive any such bids in case they should be made, and thereafter, at 1:20 o'clock p. m. I received a bid for said property from Edward W. Nash, trustee, of $117,500.00. No other bids being made up to 9 o'clock p. m., I declared said property sold to Edward W. Nash, trustee, for the sum of $117,500. Immediately after declaring said property sold to Edward W. Nash, trustee, I tendered back to William D. Beckett, attorney for Abraham L. Reed and Freeman P. Kirkendall, the sum of $20,000 paid by them upon their bid by said Beckett, and said Beckett then and there refused to receive the same. Said Edward W. Nash, trustee, then paid to me the sum of $27,000 upon his bid, I deeming it unnecessary to require the whole of said bid to be deposited with me at that time, and it was agreed that the balance of the bid should be paid prior to the confirmation of the sale. The amount bid by said Edward W. Nash, trustee, was the highest bid made for the property, and not less than two-thirds of the appraised value thereof.” As soon as the master's report was filed, plaintiff moved “to confirm the sale made by the special master commissioner.” Reed & Kirkendall moved to confirm the sale “made by the special master commissioner to them.” E. W. Nash moved “to confirm the sale of said property to him,” and objected to the confirmation of the sale to Reed & Kirkendall. Reed & Kirkendall also filed objections to the confirmation of the sale to Nash. The cause coming on for hearing on these several motions, the court overruled all motions to confirm, but set the sale aside, directing that the property should be resold under the decree. Reed & Kirkendall appealed from this order, and the case is now presented to us upon the motion of the plaintiff and of Nash to dismiss the appeal. The grounds of this motion are that the order appealed from is not a final order affecting a substantial right, and that Reed & Kirkendall have no standing to appeal therefrom.

The order setting aside the sale shows that the various motions were heard upon evidence. The record contains no bill of exceptions embodying this evidence. The appellees have, however, filed a certified transcript of what purport to be affidavits used on the hearing of the motions in the district court, and ask us, for the purpose of the pending motion at least, to consider this transcript in the place of a bill of exceptions. This we cannot do. It would be supererogatory on this point to cite the multitude of decisions holding that, for the consideration of evidence used in the district court, it is essential that it should be embodied in a bill of exceptions, duly settled, allowed, and authenticated, and that the clerk's certificate verifying copies of affidavits on file cannot under any circumstances take the place of such a bill. We must, therefore, consider the motion solely in the light of the transcript of the record before us. The argument of the motion covered quite generally the merits of the appeal, and while, in one sense, those merits are to a certain extent necessarily involved, we cannot on this motion finally pass thereon. The right of a party to appeal does not depend upon his having in fact a meritorious ground for the appeal. We take it that the question presented is not whether by the sale Reed & Kirkendall obtained a valid interest in the property, the subject-matter of the action, but whether on the record they are substantially interested in the event of the suit. “An appealable interest exists when the judgment or decree so affects a party or privy to the record that he would derive a substantial benefit from its modification or reversal.” 2 Enc. Pl. & Prac. 161, and cases there cited. In passing upon this motion, therefore, we do not inquire whether a valid enforceable sale was made to Reed & Kirkendall, but merely whether the record discloses such a substantial claim on their part as to bring them within the foregoing definition.

A few propositions established by former decisions of this court go far towards solving the question. In the first place, it has been held that an order setting aside a judicial sale is in its nature appealable. Berkley v. Lamb, 8 Neb. 392. It is contended that the order in the case cited was appealable only because the sale was set aside for a reason which prevented a resale and therefore determined the proceeding. Some of the language used by the court indicates that this feature was considered an important one in the case. But the decision was based largely on the authority of Mayer v. Wick, 15 Ohio St. 548, where the same rule was announced under circumstances which permitted a resale. Moreover, in Bachle v. Webb, 11 Neb. 423, 9 N. W. 473, in Roberts v. Robinson (Neb.) 68 N. W. 1035, and perhaps in other cases, this court has entertained appeals from such orders, reversed the order setting aside the sale, and ordered confirmation thereof, showing that the doctrine of Berkley v. Lamb...