Union Cent. Life Ins. Co. v. Saathoff
| Decision Date | 25 March 1927 |
| Docket Number | No. 24766.,24766. |
| Citation | 213 N.W. 342,115 Neb. 385 |
| Parties | UNION CENT. LIFE INS. CO. v. SAATHOFF. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The three months provided in section 9138, Comp. St. 1922, within which to perfect an appeal from a judgment or decree rendered in the district court, does not commence to run until the judgment or decree is entered on the journal of such court.
In a suit to foreclose a mortgage on real estate, the execution of the contract, the breach thereof, the identity of the real estate described therein, and the amount remaining due thereon are material and necessary issues to be determined by the decree.
In such a suit, the findings of fact contained in the decree on issues properly pleaded are not subject to review on objections to a deficiency judgment.
A decree of foreclosure of a real estate mortgage showing personal liability of defendant for any deficiency that may remain after sale of the mortgaged premises precludes such defendant on an application for a deficiency judgment from presenting any defense which he could or should have interposed prior to the announcement of the decree.
The words “entered of record” and “spread upon the journal” as appearing in the decisions of this court construing section 9138, Comp. St. 1922, mean one and the same thing, to wit, “entered on the journal.”
Appeal from District Court, Boone County; Button, Judge.
Suit by the Union Central Life Insurance Company of Cincinnati against Eno Saathoff and others, in which both plaintiff and the defendant named sought to foreclose real estate mortgages. Decrees of foreclosure in favor of both plaintiff and said defendant. From a refusal to allow a deficiency judgment, defendant Eno Saathoff appeals. Affirmed in part, and reversed in part, and remanded, with directions.G. F. Rose, of Genoa, and Sullivan, Wright & Thummel, of Omaha, for appellant.
Vail & Flory, of Albion, for appellee.
James Armstrong, of Albion, for plaintiff.
Heard before GOSS, C. J., and ROSE DEAN, DAY, GOOD, THOMPSON, and EBERLY, JJ.
[1] This is an appeal taken by defendant Eno Saathoff from the refusal of the district court for Boone county to allow a deficiency judgment. The record reflects the following: Both the plaintiff and defendant, cross-petitioner Eno Saathoff, were seeking to foreclose their respective mortgages on the lands in question, and praying for a deficiency judgment; Eno Saathoff against the defendants Pieper, appellees, herein. After due service of summons on all parties, the Piepers failed to plead and default was entered against them. The issues being duly joined, trial was had, and the court found generally in favor of the above mortgagees; that the Piepers had each signed the respective notes set forth in the cross-petition of Saathoff, and the mortgage securing the same, and after due execution thereof, for a valuable consideration, had delivered the same to such Saathoff; found the amount past due and unpaid on such notes and mortgage from the Piepers to Saathoff; and, further, that plaintiff was entitled to a decree of foreclosure and sale of the property, as also was defendant Saathoff. After the lands were sold and proceeds applied, the decree in favor of Saathoff was left entirely unsatisfied. Saathoff then, in harmony with the prayer of his cross-petition and such decree, filed a motion, and again asked that deficiency judgment be entered in his favor and against Julius H. Pieper and Katie H. Pieper, his wife, for the amount found due and owing him from them, to wit, $11,003.45, with interest thereon from the date of decree to date of entering of deficiency judgment. To this application the Piepers jointly interposed the following objections:
“Comes now the defendants Julius H. Pieper and Katie H. Pieper and object to the allowance of a deficiency judgment against them or either of them in the above-entitled cause, for the reason that the above mentioned defendants are not personally liable upon the instruments of indebtedness set forth in the pleadings herein.”
Trial was had, the findings and judgment announced by the court in favor of the Piepers,denying deficiency judgment and taxing costs to Saathoff. A proposed journal entry was prepared at the time, to wit, March 24, 1924, by the attorney for the Piepers, and signed by the then presiding judge covering the announced judgment denying a deficiency, and filed by the clerk, but was not entered on the judgment record, commonly known as the “journal,” until February 14, 1925. This appeal was filed and docketed on May 13, 1925, and within less than 90 days from the entering of such announced judgment on the journal. The record brought to this court further shows that, within three days from the announcement of the judgment denying deficiency, Saathoff filed a motion for a new trial, in substance as follows: That the judgment is not supported by the evidence, and is against the weight thereof, and is contrary to law. This motion was overruled on the 20th day of October, 1924, or was so announced by the court. Owing to the indefiniteness of the proceedings as presented, we cannot determine when this announced judgment was spread on the journal by the clerk, but it is not material, as will be made plain in the further consideration hereof.
Appellees Pieper challenge our right to consider this appeal on its merits, for the reason that the same was not lodged in this court within 90 days from the announcement of the court denying Saathoff a deficiency judgment, and the filing of such announcement with the clerk. As to this contention, it is sufficient to say that such appeal was perfected within 90 days from the entry of the judgment on the journal by the clerk, which we have uniformly held sufficient as to time.
In the case of In re Estate of Getchell, 98 Neb. 788, 154 N. W. 537, in the opinion as well as in the syllabus, we held:
“The time for taking an appeal from the district court to the Supreme Court begins to run when the final judgment is entered of record.”
In Dahlsten v. Libby, 104 Neb. 84, 175 N. W. 655, in interpreting the above-quoted syllabus, in the course of the opinion, we said:
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