State ex rel. McClosky v. Doane

• Decision Date: 16 November 1892
• Citation: 35 Neb. 707,53 N.W. 611
• Parties: STATE EX REL. MCCLOSKY v. DOANE, JUDGE.
• Court: Nebraska Supreme Court

35 Neb. 707

53 N.W. 611

STATE EX REL. MCCLOSKY

v.DOANE, JUDGE.

Supreme Court of Nebraska.

Nov. 16, 1892.

Syllabus by the Court.

Where, on the return of an order of sale in a foreclosure proceeding, the defendant has notice of an order to show cause against the confirmation of a sale of the mortgaged property, but allows the sale to be confirmed without exception, he is without a remedy in this court, and a mandamus will not be allowed to compel the district judge to fix the amount of an undertaking in appeal in order to enable the defendant to have the order of confirmation reviewed in this court.

Original application by the state on the relation of Henry McClosky for a mandamus to compel George W. Doane, one of the judges of the fourth judicial district, to fix the amount of an appeal bond, in order to enable relator to have an order of confirmation of sale in a foreclosure proceeding reviewed in the supreme court. Writ denied.Charles F. Tuttle and Pound & Burr, for relator.

Lake, Hamilton & Maxwell and W. W. Morsman, for respondent.

POST, J.

This is an original application for a writ of mandamus to compel the respondent, one of the judges of the fourth judicial district, to fix the amount of an appeal bond. The material facts are as follows: W. W. Morsman obtained a decree of foreclosure in the district court of Douglas county against certain real estate in the city of Omaha. Thereafter the relator, Henry McClosky, owner of the equity of redemption, filed a written request for a stay of execution, and the execution of said decree was accordingly stayed for the period of nine months. At the expiration of the stay, an order of sale was issued, by virtue of which the mortgaged property was in due form advertised for sale, and sold to the plaintiff, Morsman. On the 24th day of September, 1892, return of said order of sale having been made, the district court made and entered of record an order to show cause by the 1st day of October following why said sale should not be confirmed. Mr. Tuttle, attorney for the defendants therein, notified the plaintiff that he was about to object to confirmation of the sale on behalf of said defendants. Plaintiff, in reply, informed him that, if he would make any such showing as would place the defendant Henry McClosky on record so that he would be bound by the order of court with respect to a deficiency judgment, he (plaintiff) would consent to have said sale set aside, and a new sale ordered. Defendants, although notified of the order to show cause against a confirmation of the sale, made no motion to set aside the sale, or other objections thereto. After the court had examined the return, and entered the order of confirmation, defendants, by their said attorney, requested the court to fix the amount of an appeal bond, saying that they desired to appeal from said order to this court. In reply to a question by the court if any cause had been shown against the confirmation, and for a deficiency judgment, said attorney answered the court that there was no objection to the confirmation, but that defendants wished to appeal. It was further stated by said attorney in open court that the reason no motion was made to set aside the sale was that the defendants feared that plaintiff, Morsman, would confess such a motion, and that the property would not bring as much on a second sale by $4,000 or $5,000, thereby increasing by that amount the deficiency judgment. The request to fix the amount of an appeal undertaking was denied by the court, whereupon this proceeding was instituted by the defendant McClosky. It is claimed by him that the order of confirmation is a final order, from which an appeal will lie to this court. See Bank v. Green, 8 Neb. 297, 2 N. W. Rep. 228;Berkley v. Lamb, 8 Neb. 392, 1 N. W. Rep. 320.

We are also referred to the third subdivision of section 677 of the Code of Civil Procedure, which provides that “when the judgment, decree, or order directs the sale,...