State ex rel. Harris v. Laflin

• Decision Date: 02 May 1894
• Citation: 58 N.W. 936,40 Neb. 441
• Parties: STATE EX REL. HARRIS v. LAFLIN, CLERK.
• Court: Nebraska Supreme Court

40 Neb. 441

58 N.W. 936

STATE EX REL. HARRIS

v.LAFLIN, CLERK.

Supreme Court of Nebraska.

May 2, 1894.

Syllabus by the Court.

1. But for the provisions of the statute, the plaintiff in a foreclosure suit would be entitled to immediate execution of his decree upon its rendition. By the statute it is provided, however, that the defendant in a decree of foreclosure may stay the execution of the same by filing with the clerk of the court in which said decree is rendered a written request for a stay of execution thereof within 20 days from the date of its rendition. This is a statutory remedy, and is only obtained by a strict compliance with all the required conditions; time is an essential element in the proceeding, and one which neither the court nor the judge thereof can disregard. If a delay in filing such request beyond the limited time occurs, the right to the remedy is gone, and the plaintiff holds his decree discharged from this means of staying his execution.

2. An order of a district court recalling an order of sale in a decree foreclosing a real estate mortgage, and permitting the defendant in such decree to file with the clerk, more than 20 days after its rendition, a request for a stay thereof, is not void.

3. Such an order is one affecting a substantialright made upon a summary application in an action after judgment, is a final order, and may be reviewed on error.

4. The filing in this court of a petition in error to review such order, and the execution, approval, and filing of a supersedeas bond therefor required by the district court, does not vacate or suspend such order.

5. The remedy by mandamus is the last resort of the litigant. It is only when all other remedies have failed that he is entitled to this writ.

6. Mandamus will not issue when its effect would be to reverse or vacate an order of a court or tribunal having jurisdiction to make such order, although the same may be palpably erroneous; and especially is this so when such order is one that may be reviewed on error or appeal. McGee v. State, 49 N. W. 220, 32 Neb. 149;State v. Cotton, 50 N. W. 688, 33 Neb. 560;People v. Garnett, 23 N. E. 331, 130 Ill. 340.

Mandamus on the relation of E. Harris against one Laflin, clerk of the district court of Gage county, to compel the issuance of an order for the sale of real estate. Writ denied.

F. B. Sheldon and E. O. Kretsinger, for relator.

E. N. Kauffman, for respondent.

RAGAN, C.

On the 6th day of November, 1893, E. Harris obtained a decree of foreclosure of a mortgage in the district court of Gage county against one Nichols. On December 13, 1893, Nichols having taken no appeal or error proceedings from said decree, and not having filed a request staying the execution of said decree, an order for the sale of the property described in said decree, and to satisfy the same, was issued by the clerk of said district court at the request of Harris. This order was placed in the hands of the sheriff of Gage county, who appraised and advertised the property to be sold on the 12th day of February, 1894. On the 5th day of February, 1894, the court, on motion of Nichols, and without other showing, made an order requiring the sheriff to return said order of sale, and permitting Nichols to file of record a request for the stay of the execution of the decree as of the date of its rendition. Nichols filed the request for the stay of the execution of the decree, and the sheriff returned the order of sale. To this order of the court Harris took an exception, and prayed the district court to fix a supersedeas bond, which the court did, and which bond Harris then gave, and the same was approved, and thereupon Harris filed in this court a petition in error to review the said order of the district court. Harris then obtained from the clerk of this court a certificate setting forth that he had filed with said clerk a petition in error and supersedeas bond to review the order of the district court to issue an alias order for the sale of the property described in the decree. This the clerk refused to do. Harris thereupon applied to the district court for an order directing its clerk to issue the order of sale requested. This application the court denied. Harris then made application to this court for a peremptory writ of mandamus to compel the clerk of the district court to issue an order for the sale of the real estate described in his decree of foreclosure, and set out at length in his application the facts stated above. To this application the clerk of the district court has demurred.

But for the provisions of the statute, the relator, on obtaining his decree of foreclosure on the 6th day of November, 1893, would have been entitled to an immediate execution of the decree; that is, to an immediate order for the sale of the property to satisfy the amount found due him by the decree. The statute has provided three methods by which Nichols could have stayed the execution of the decree rendered against him. One method was by taking an appeal from the decree, and executing a supersedeas bond as provided by section 677...