Srajhans v. Mares

• Decision Date: 08 May 1936
• Docket Number: 29672
• Citation: 267 N.W. 82,130 Neb. 924
• Parties: JOSEPH J. SRAJHANS, APPELLEE, v. FRANK MARES ET AL., APPELLANTS
• Court: Nebraska Supreme Court

267 N.W. 82

130 Neb. 924

JOSEPH J. SRAJHANS, APPELLEE, v. FRANK MARES ET AL., APPELLANTS

No. 29672

Supreme Court of Nebraska

May 8, 1936

APPEAL from the district court for Saline county: ROBERT M PROUDFIT, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. When it appears from the evidence that the amount of the mortgage liens on the land exceeds its value, a moratory stay under section 20-21,159, Comp.St.Supp.1935, must be denied.

2. Mere inadequacy of price will not preclude a confirmation of a foreclosure sale unless it is so inadequate as to shock the conscience of the court or amount to evidence of fraud.

Appeal from District Court, Saline County; Proudfit, Judge.

Action by Joseph J. Srajhans against Frank Mares and others. From a judgment, defendants appeal.

Affirmed.

Richard O. Johnson and Bernard J. Klasek, for appellants.

C. R Stasenka, contra.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and CARTER, JJ., and YEAGER, District Judge.

OPINION

CARTER, J.

This is an appeal from a judgment of the district court for Saline county denying the application of the appellant for a moratory stay under the provisions of section 20-21,159, Comp. St. Supp. 1935.

On June 20, 1934, a decree of foreclosure was entered against the property covered by appellee's mortgage on liens aggregating an amount in excess of $ 48,000. The property consisted of four lots in the city of Wilber upon which was a modern one-story garage building 132 feet long and 88 feet wide. The appellant placed the highest value on the property of any witness who was called, when he testified it was worth $ 25,000. Assuming that this evidence is true, appellant would not be entitled to a moratory stay under the recent holdings of this court.

In Clark v. Hass, 129 Neb. 112, 260 N.W. 792, this court said: "Where, upon a hearing on an application for a moratory stay of proceedings under section 20-21,159, Comp. St. Supp. 1933, it appears that the amount of the mortgage lien exceeds the value of the lands secured by the mortgage, it is not an abuse of discretion on the part of the trial court to deny the application." Other cases to the same effect are First Trust Co. v. Stenger, 130 Neb. 750, 266 N.W. 642; Luikart v. Graf, 130 Neb. 736, 266 N.W. 641. We conclude, therefore, that the trial court properly denied the moratory stay.

Appellant contends that the trial court erred in confirming the sale of the premises. The record shows that the property sold for $ 5,500. Delinquent taxes in the amount of $ 4,500 were a prior lien. The testimony of appellant's witnesses, other than appellant himself, is to the effect...