Penn Mutual Life Insurance Company v. Creighton Theatre Building Company

• Decision Date: 18 May 1897
• Docket Number: 9097
• Citation: 71 N.W. 279,51 Neb. 659
• Parties: PENN MUTUAL LIFE INSURANCE COMPANY, APPELLEE, v. CREIGHTON THEATRE BUILDING COMPANY ET AL., APPELLEES, AND A. L. REED ET AL., APPELLANTS
• Court: Nebraska Supreme Court

71 N.W. 279

51 Neb. 659

PENN MUTUAL LIFE INSURANCE COMPANY, APPELLEE, v. CREIGHTON THEATRE BUILDING COMPANY ET AL., APPELLEES, AND A. L. REED ET AL., APPELLANTS

No. 9097

Supreme Court of Nebraska

May 18, 1897

APPEAL from the district court of Douglas county. Heard below before SCOTT, J. Submitted on motion to dismiss appeal and on motion to vacate supersedeas allowed by supreme court. Motion to dismiss overruled. Order below denying supersedeas reversed.

Affirmed.

John L Webster and Montgomery & Hall, for the motions.

William D. Beckett and R. S. Hall, contra.

OPINION

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 Theatre 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. 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 paid 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 Ency. Pl. & Pr., 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 1 N.W. 320.) 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, 49 Neb. 717, 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 has not by the court been confined so narrowly as the argument referred to would require. It is also settled by the same cases that the court, in examining a foreclosure or execution sale, is not vested with any arbitrary discretion to set the sale aside. On the other hand, if the sale was regularly made in conformity to the decree and to law, the parties have a right to insist upon confirmation. In Nebraska Loan & Trust Co. v. Hamer, 40 Neb. 281, 58 N.W. 695, where the contest was as to which of two bidders should have been declared the purchaser, it was distinctly held that the contract is closed by the acceptance of a bid; in other words, that rights become vested thereby. True, the rights of the purchaser do not become complete until confirmation; but if his bid be good and sufficient, if it be the highest, if it be accepted, and if the proceedings have been regular, he becomes entitled to the order of confirmation which finally adjudicates his rights; per contra, a refusal to confirm and a setting aside of the sale if acquiesced in by the purchaser, would finally defeat all right obtained under the sale. By the acceptance of a bid the bidder becomes a party, subject to the jurisdiction of the court and concluded by its orders, and he may be required and compelled to perform his bid. (Phillips v. Dawley, 1 Neb. 320; Jones v. Null, 9 Neb. 254, 2 N.W. 350; Gregory v. Tingley, 18 Neb. 318, 25 N.W. 88; Norton v. Taylor, 35 Neb. 466, 53 N.W. 481.) It follows from these considerations that the successful bidder becomes absolutely...