Waldron v. First Nat. Bank of Greenwood

• Decision Date: 16 May 1900
• Parties: WALDRON ET AL. v. FIRST NAT. BANK OF GREENWOOD.
• Court: Nebraska Supreme Court

60 Neb. 245

82 N.W. 856

WALDRON ET AL.

v.FIRST NAT. BANK OF GREENWOOD.

Supreme Court of Nebraska.

May 16, 1900.

Syllabus by the Court.

1. Where mortgaged property is probably insufficient to discharge the mortgage debt, the court may, in an action to foreclose the mortgage, on the application of the mortgagee, appoint a receiver.

2. And in such case it is immaterial whether a deficiency judgment against the parties liable for the debt is collectible.

3. The finding of a court, grounded on substantially conflicting evidence as to the value of property, will not be disturbed.

4. It will be presumed, in the absence of a showing to the contrary, that the discretionary powers of the district court have been wisely exercised.

Error to district court, Cass county; Ramsey, Judge.

Action by the First National Bank of Greenwood, Neb., against Harvey R. Waldron and others. Judgment for plaintiff, and defendants bring error. Affirmed.Saml. M. Chapman, for plaintiffs in error.

Frank Droire, C. S. Polk, and Roscoe Pound, for defendant in error.

SULLIVAN, J.

This action was commenced in the district court of Cass county by the First National Bank of Greenwood to foreclose two real-estate mortgages. At plaintiff's instance an order was made, before judgment, appointing a receiver, on the ground that the mortgaged property was probably insufficient to discharge the mortgage debt. To secure a reversal of this order, the Waldrons, who were defendants below, prosecute error to this court. The assignments in the petition in error are as follows: “(1) The court erred in finding that the property in controversy (being real estate in this petition described, with all its improvements) is inadequate security for the debts of the plaintiff herein, and the mortgages and judgments prior to the plaintiff's said lien. (2) The court erred in finding that the defendants liable for deficiency judgment have no sufficient property, over and above their debts and exemptions, to pay the probable deficiency judgment in the case. (3) That the court erred in finding for the plaintiff, and in appointing a receiver for the plaintiffs in error's property, when the evidence and proof in said cause show that the owner of the mortgaged premises is solvent, and that the premises are adequate security for the payment of the plaintiff's demand against the same, and that no grounds exist for the appointment of said receiver.” By the foregoing specifications three points are presented for decision. They are these: (1) Is the evidence sufficient to warrant the conclusion of the trial court that the plaintiff's security is probably inadequate? (2) Does the evidence show that the defendants who are personally liable for the debt are insolvent? (3) May a receiver be appointed in a foreclosure suit if the debtor is financially...