Walter v. Gillan
| Decision Date | 19 July 1935 |
| Docket Number | 29299. |
| Citation | 262 N.W. 33,129 Neb. 514 |
| Parties | WALTER ET AL. v. GILLAN ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Where the decree of the trial court requires the execution of a conveyance, the trial court may for the purpose of appeal prescribe a bond to be executed conditioned for the performance of the decree, or the party so required may, in lieu thereof, execute the required conveyance and deposit it with the clerk of the court to abide the judgment of the appellate court. Comp. St. 1929, §§ 20-1916, 20-1917.
2. When the requirements for supersedeas on appeal have otherwise been met and such conveyance, with the approval of the trial judge and clerk of the court, so deposited, the power of the trial court to proceed in the case becomes thereupon suspended until disposition of the appeal is made.
3. Record examined and finding and judgment permitting redemption by leasehold owner, providing for cancellation of title of defendant and requiring transfer of lease and leasehold rights to plaintiffs, approved. Conditions modified.
4. Time fixed for redemption.
Appeal from District Court, Lancaster County; Chappell, Judge.
Action by Arthur E. Walter and others against W. A. Gillan and others. From a judgment, defendants appeal.
Modified in part and, as modified, affirmed, and reversed in part and remanded, with directions.
John J. Ledwith, I. D. Beynon, and Willis Hecht, all of Lincoln for appellants.
John L. Mattox, of Lincoln, and Minor & Minor, of Kearney, for appellees.
Heard before ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ., and BLACKLEDGE, District Judge.
This is an appeal from the district court for Lancaster county wherein the action was commenced by the plaintiffs, the owners of the improvements on, and lease of, a section of school land in Buffalo county. The petition prayed for cancelation of an assignment and transfer of such property made to defendant Gillan and alleged to have been fraudulently procured by him with the assis tance of defendants Barney and Lunger. The petition also prayed for the recovery of damages.
It is suggested in appellants' brief that the action was for both rescission and damages, which remedies are inconsistent and cannot both be followed. Rasmussen v. Hungerford Potato Growers' Ass'n, 111 Neb. 58, 195 N.W. 469.The correctness of the proposition may be conceded, but no objection on this ground appears to have been made in the trial court, it is not within the assignments of error in this court, the parties proceeded to trial and judgment as in equity and the case will be so considered here.
The decree of the trial court provided for cancelation of the instruments executed by plaintiffs in connection with the transaction, and that upon payment by plaintiffs to defendant Gillan, within 60 days, of $501.10 in reimbursement for a like amount paid by him to the commissioner of public lands and buildings, and the delivery of their note for $1,011.20, to be substituted for Gillan's note with the commissioner, and representing delayed payments on the school land lease, the new lease procured by Gillan be by him assigned to plaintiffs and Gillan divested of any further right or title thereto. The decree further provided that if defendant Gillan should fail to do the things so required of him, or if he should transfer the lease to any innocent holder, then the plaintiffs should have judgment against him in the sum of $2,500, in lieu of any and all other rights decreed to them. This decree was entered March 27, 1934.
Thereupon defendants duly filed a motion for new trial which was denied April 21, 1934. May 11, 1934, defendants executed and deposited with the clerk of the court an assignment by Gillan to plaintiffs for the school land lease, with notice that it was so done in lieu of a supersedeas undertaking pursuant to section 20-1917, Comp. St. 1929, and the same bore the indorsement and approval of both the trial judge and the clerk; objections thereto being overruled. This was followed by notice of appeal and the filing of the usual cost bond.
Meantime, upon motion and affidavit filed by plaintiffs May 23, 1934, showing was made to the effect that they had on May 14, and 21, within the time provided by the court, tendered to defendant Gillan the $501.10 and offered to do the things required of them by the decree, but that the said defendant refused to accept the same or assign the lease. Thereupon plaintiffs applied for rendition of the alternative judgment of $2,500 in their favor provided for in the decree, which application was granted and entry made of such judgment June 2, 1934. This was followed by amended notice of appeal by defendants June 22, 1934, and an additional bond of $5,000.
It is now contended that the trial court was without authority to grant or render the second or supplemental judgment for $2,500 on June 2, and with this contention we agree. The statute (Comp. St. 1929, § 20-1917) provides for the filing of such an instrument instead of the bond prescribed by the court. This instrument had received the approval of the trial judge as a supersedeas, no contention is made that it was not sufficient for that purpose, no attempt was made to have it vacated, but with that assignment resting in the files the plaintiffs successfully sought to have the later refusal of defendants to execute and deliver another assignment to them made the basis of a money judgment. We know of no justification for such procedure. The decree of March 27, 1934, had been duly superseded and the power of the district court to proceed in the case was suspended. Carroll v. Polfus, 98 Neb. 657, 154 N.W. 213.The judgment entered June 2, 1934, for $2,500 is therefore vacated and set aside.
This leaves the case to be considered upon the original issues of fraud. Herein the situation shown by the record without material dispute is: Plaintiffs were record owners of a school land lease issued on behalf of the state covering all of section 16, township 10, north range 14, in Buffalo county, were in actual occupancy thereof, and were owners of improvements thereon consisting of buildings, fences windmill, etc., to the value estimated at from $1,500 to $4,000. Their lease purchase had been made from the Gilcrest Lumber Company in January, 1926, on which a cash payment of $1,000 had been made and notes given for a balance of $5,500 of the purchase price, for security of which the Gilcrest company held an assignment of the lease. All the notes were past due and unpaid except two payments indorsed on the one $500 note, and coupons detached from the others indicating...
To continue reading
Request your trial