Vybiral v. Schildhauer

• Decision Date: 14 January 1944
• Docket Number: 31650.
• Citation: 12 N.W.2d 660,144 Neb. 114
• Parties: VYBIRAL v. SCHILDHAUER et al.
• Court: Nebraska Supreme Court

12 N.W.2d 660

144 Neb. 114

VYBIRAL v. SCHILDHAUER et al.

No. 31650.

Supreme Court of Nebraska

January 14, 1944

Syllabus by the Court.

1.The defendant mortgagor in a foreclosure proceeding having availed himself of the relief offered under the Frazier-Lemke act, the ensuing bankruptcy proceedings halted the foreclosure action in the state court.

2.When the trustee in bankruptcy abandons bankrupt's real estate as burdensome, and the federal court approves thereof the state court is at liberty to proceed with the foreclosure action pending therein, for the jurisdiction over said real estate is again vested in the state court.

3.When the sole plaintiff who is the successful bidder at a foreclosure sale dies, and notice thereof is given the court during the pendency of the action, further proceedings cannot be had, upon objection being made, until the action is revived in the name of the proper parties.

4.Where a confirmation of the sale has been had after the death of a party thereto, and no objection was made prior to confirmation, it cannot be attacked collaterally.

Charles A. Fisher, of Chadron, for appellants.

Edwin D. Crites, of Chadron, for appellee.

Heard before SIMMONS, C. J., PAINE, CARTER, CHAPPELL and WENKE, JJ., and POLK and NUSS, District Judges.

PAINE Justice.

This is an appeal by the defendants from a decree and order confirming a foreclosure sale.A very brief statement of the facts will be helpful before the law points involved are discussed.

Plaintiff filed a petition for foreclosure on January 2, 1933, on note and mortgage for $8,500, dated March 13, 1926.The answer and cross-petition presented an issue as to damages growing out of an allegation in the petition that defendants were committing waste by removing growing timber from the ranch.This issue was tried to a jury, which found against the defendants.

Decree of foreclosure was entered March 29, 1934, finding the amount due plaintiff $10,596.48, with 10 per cent. interest and costs, which added to the principal made the amount due at the time of the last trial in the district court on March 16 1943, about $20,309.82.After decree a regular stay had been taken and order of sale issued January 7, 1935.Sheriff's return reported that sale was held February 12, 1935, and the property bid in by the plaintiff for $8,500.

On April 3 1935, the first stay under the moratorium was entered.An appeal was taken to this court by the defendants, and in Vybiral v. Schildhauer, 130 Neb. 433, 265 N.W. 214, the decree of foreclosure and dismissal of the cross-petition was affirmed.Judgment on mandate was entered June 3, 1936.

On March 15 1937, an extension of the moratorium stay was entered.Thereafter the defendant filed a petition in the federal court for relief under the Frazier-Lemke Act, 11 U.S.C.A. § 203, and the prayer was granted.Thereafter the defendant filed an amended petition under the Frazier-Lemke Act, and on this decree he was adjudged a bankrupt.

Plaintiff's exhibit No. 3 is the report of the trustee in bankruptcy, setting out the report of the three appraisers, who were appointed June 23, 1942, and who certified that the land of defendant herein consists of 1,160 acres, 122 acres of farm land appraised at $10 an acre, 1,038 acres of pasture land appraised at $5 an acre, and one set of improvements appraised at $1,000, making a total appraisement of land and improvements of $7,410.Said trustee's report then describes the amount of plaintiff's foreclosure decree and another lien on said property, and prays that he be authorized to disclaim title and abandon said property.

The three-year moratorium entered by the federal court having expired, upon application of the plaintiff an order was duly entered by Honorable John W. Delehant, judge of the United States district court, district of Nebraska, Chadron division, directing that the trustee in bankruptcy, William H. Hein, be directed to disclaim title to and abandon all of the real property of the defendant as a farm debtor, and that a copy of the order be transmitted to the clerk of the district court in and for Sheridan county, Nebraska, where foreclosure suit is pending, and that further proceedings be had in that court to all intents and purposes as might be done had not the present proceeding in this court been filed herein, and that any stay resulting from the filing and pendency of these proceedings be and the same is hereby vacated.

Thereupon, in the lower court on March 16, 1943, an oral motion was made to confirm the sale, objections made thereto, and trial had.

The bill of exceptions consists of two pages of stipulations of all the facts relating to the foreclosure action, then appear many exhibits of the copies of proceedings in the federal court, then stipulation that plaintiff died August 13, 1938, and a copy of the will is made an exhibit.It was conceded that the files here produced are the original files of the county court of Sheridan county, Nebraska, in which the will was probated; that a decree of final account and distribution was entered in the estate of the plaintiff on March 27, 1939, and said decree provides that the interest of the plaintiff, Marie Vybiral, in said land, shown in said foreclosure decree, and her bid at said sheriff's sale, be and the same are hereby assigned to her daughters, Mary Kadlecek, Agnes Kutschara, Emma Valdyka and Anna Jirek, as tenants in common, share and share alike.

After the hearing in the lower court, an order of confirmation was entered, finding that plaintiff did bequeath all her property, right, and interest in and to the premises foreclosed to the four devisees named, and all such interest was, by decree of the county court, assigned and confirmed in them, and that they are now the owners thereof, and that the sheriff's deed should be executed and delivered to them as successors in interest of the said Marie Vybiral, plaintiff.The court further finds that the sale was made in conformity to law, and that the property sold for a fair value, and that a subsequent sale would not realize a greater amount; that the amount of valid liens against the land far exceeds the fair market value thereof, and that the objections to confirmation are not well taken, and should be overruled and denied, and that a resale would not result in a higher bid.The court thereupon directed the present sheriff to make a deed to the said four devisees named in the will, and that a writ of assistance be allowed to put them in possession.

Three errors are relied upon for reversal by the defendant: (1) That the trial court erred in holding that the state court had jurisdiction, when the matter was yet pending and undetermined in the United States district court; (2) that the trial court erred in confirming the sale and finding that the land sold for its fair value, although the sale had been had on February 12, 1935, and that a new sale would not bring a greater price; (3) that the trial court erred in confirming the sale without the action having been revived in the name of the personal representative of the deceased plaintiff, or in her heirs, no revivor having been had in the name of any person.

Taking these up in order, we will consider the first assignment of error, that the trial court erred in holding that it had jurisdiction when the matter was yet pending in the federal court.It appears in defendant's exhibit No. 3 that there was the sum of $463.86 on deposit, which was made up of moneys paid in to the state court as rentals of the land, under orders granting the moratorium stay, and which sum was transmitted by the clerk of the state court to the clerk of the federal court.Against this sum attorney Fisher filed an attorney's lien, and endeavored to establish the same in the federal court, but on September 17, 1942, the United States district judge denied the lien, and no appeal was taken therefrom.

The record shows that the title...