36 N.W.2d 494 | Neb. | 1949
This is an appeal from an order of the district court for Thurston County appointing a receiver to carry into effect the terms and provisions of its decree herein entered on August 7, 1946, which decree, on appeal, was affirmed by this court. See Frese v. Michalec, 148 Neb. 567, 28 N. W. 2d 197.
For the purpose of this appeal the parties will be referred to herein as they appeared in the trial court.
The decree sought to be enforced contains the following terms and provisions: “* * * that th'e defendant herein, Joe Michalec, be ánd he is hereby permanently and perpetually enjoined from keeping and maintaining the
On October 13, 1947, we issued our mandate directing the trial court to carry into effect its decree.
Thereafter the plaintiffs filed their application in the district court, subsequently amended, setting forth that the defendant had failed to properly remove the dike, as by the decree required, and had'otherwise failed to comply with the terms and provisions thereof. Therein
Defendant filed objections to the application and at the hearing thereon resisted it on the grounds that he had complied with the terms and provisions of the decree.
Hearing on the application, as amended, and the objections thereto was had on May 5, 1948. Pursuant thereto, on July 14, 1948, the court appointed a receiver for the purpose of carrying into effect the terms and provisions of the decree herein dated August 7, 1946. It further directed the receiver “to employ a qualified engineer to take all necessary levels and make all necessary surveys to determine the work necessary to be done upon said lands for a fair and reasonable compliance with the terms of said decree of August 7, 1946, and that upon the completion of said levels and surveys said receiver shall make his report to the Court for the Court’s further order thereon.”
Defendant filed a motion for rehearing and from the overruling thereof appealed.
District courts are authorized by section 25-1081, R. S. 1943, after judgment or decree, to appoint a receiver to carry the judgment or decree into execution.
Pursuant to section 25-1087, R. S. 1943, every such order appointing a receiver should contain special directions in respect to his powers and duties.
As a basis for its order appointing the receiver and made a part of its decree the trial court made the following finding: “That it is visible to the naked eye of the ordinary layman, and without engineering ex
In this respect the record shows the court inspected the premises and the work done thereon by defendant in his effort to comply with the terms and provisions of the decree.
The evidence in the record discloses that the defendant has not complied with the terms and provisions, of the decree. It fully supports the trial court’s findings to that effect. It discloses that the appointment of a receiver was not only proper and justified but undoubtedly necessary in order to put the decree into force and effect.
In view of the defendant’s failure, after ample opportunity, to carry out the terms and provisions of the decree we find the taxing of costs to him to be proper. For the reasons stated we affirm the judgment of the trial court.
Affirmed.