61 Neb. 98 | Neb. | 1900
This proceeding in error brings up for review an order of the district court for Kearney county confirming a sale of real estate made in execution of a decree of foreclosure. The decree not only directed a sale of the mortgaged property, but fixed the liability of Johnston for any deficiency that might remain after the proper application of the proceeds of the sale. This decree was rendered on May 17,1895, and within twenty days thereafter John
“Whereas on the 17th day of May, 1895, a decree was rendered in the district court of Kearney [county] in favor of Florence M. Oraig and against Lucian 0. Johnston finding said Lucian O. Johnston liable for deficiency judgment in foreclosure of mortgage in an action pending therein wherein Florence M. Oraig was plaintiff and J. M. Bell et al. are defendants, and the said Lucian 0. Johnston intends to appeal said cause to the supreme court, and whereas said district court has prescribed the sum of |50.00 as the' amount of the bond to obtain a review of said judgment in the supreme court:
“Now therefore the oondtion of this obligation is such that if said Lucian C. Johnston shall prosecute such appeal without delay and pay all condemnation money and costs which may be found against him on the final determination of the cause in the supreme court, then this obligation shall be null and void, otherwise to remain in full force and effect”
After the expiration of nine months from the date of the decree an order of sale was issued, the property was sold and the sale confirmed.
The first contention of counsel for Johnston is that the order of confirmation should be reversed because the sale was made while the case was pending in this court. It is time, of course, that the pendency of an appeal, when a supersedeas bond has been given, suspends the execution of the decree; but we think Johnston is not in a position to insist that he has appealed from the decision of the court directing a sale of his property. The character of the appeal bond and the request for a stay of the order of sale indicate clearly that he did not complain of the foreclosure of the mortgage, nor desire a reversal of that part of the decree. His evident intention was to appeal only from the provision binding him
Alleged undervaluation of the mortgaged property by the appraisers is another ground upon which a reversal of the order of confirmation is claimed. There was no bill of exceptions settled by the trial judge, and consequently the evidence upon this point did not become a part of the record. The presumption is that the conclusion of the district court was warranted by the proof.
The order is
Affirmed.