57 Neb. 252 | Neb. | 1898
The facts necessary to an understanding of this case are: In the district court of Douglas county Sophia Lowe brought suit to foreclose an ordinary real estate mortgage against John Riley. Balfe & Read, David M. Marvin, guardian, and Charles E. Bates were, among others, also made parties defendant to the action. By the decree pronounced by the district court in that action Marvin, guardian, was given a first, Charles E. Bates a second, Sophia Lowe a third, and Balfe & Read a fourth lien upon the property. Balfe & Read appealed from that decree to this court. While the appeal was pending here the district court of Douglas county appointed, a receiver for the property involved in the foreclosure action, conferring upon him the usual powers to take possession of the ■ property in litigation, collect the rents and profits thereof, etc. The receiver accepted the trust and duly qualified therefor. Riley and Balfe & Read excepted to this order and the court made this entry: “Their bond for appeal is hereby fixed by the court at the sum of $1,000.” Riley and Balfe & Read thereupon, supposing, we presume, that they were superseding- the order of the district court appointing a receiver, executed their bond in the sum of $1,000, had the same approved., and filed by the clerk of the district court. This bond recited that the court had appointed a receiver for the
1. The first contention is that the court had no jurisdiction of the appellants. In pursuance of the order to ' show cause served upon them Balfe & Bead and Benson appeared specially and objected to the jurisdiction of the court over them, on the ground that there had never been a summons served upon them as provided by section 62 of the Code of Civil Procedure. The contention of the ■appellants was that this proceeding was a civil action and could be commenced only by filing in the office of the clerk of the district court a petition and causing a summons to be issued thereon; and that as no summons had ever been issued and served upon them the court had no jurisdiction over them. The objection of appellants was overruled, and thereupon they answered to the merits, but did not interpose in their answers as a defense the court’s lack of jurisdiction over them by reason of their having been served with an order to show cause instead of being duly summoned. We think that the appellants, by answering to the merits of the case, and by not pleading in their answer as a defense the lack of the court’s jurisdiction over them, waived that defense and entered a general appearance in the proceeding. (Walker v. Turner, 27 Neb. 103; Hurlburt v. Palmer, 39 Neb. 158.) In support of their contention that the court was without jurisdiction over them appellants rely upon Anheuser-Busch Brewing Ass’n v. Peterson, 41 Neb. 897. In that case it was said: “Under the provisions of our Code it is proper to plead as a distinct defense any facts not dis closed by the petition from which it appears that the court has not acquired jurisdiction of the person of the defendant, or the subject of the action.” In that case .'Busch was made a defendant, and personal service of a .summons was had upon him in the state of Missouri.
2. In the district court appellants demanded a jury, which was refused, for the trial of the issues in the'pro-, ceeding at bar, and this action of the court is urged here for a reversal of the decree appealed from. This demand for a jury is predicated upon the theory that the proceeding vas a law action. We do not think it ivas. It was a special proceeding in an equity case originated and carried on for the purpose of carrying into effect the decree rendered in the mortgage foreclosure suit; and since the district court as a court of equity had jurisdiction of this foreclosure suit for one purpose, it had the right to retain it and enter all orders, judgments, and decrees necessary to a final and complete disposition of the litigation. (Morrissey v. Broomal, 37 Neb. 766; Disher v. Disher, 45 Neb. 100; Flentham v. Steward, 45 Neb. 640.) But the argument of the appellants that this is a law .action would put them out of court. This case is here on appeal, and an appeal will not lie to this court from a judgment of a district court rendered in an action purely legal in its nature. Such a judgment can only be reviewed by this court in a proceeding in error. (Camp
3. A third argument is that the supersedeas bond for $1,000, executed by the appellants and which they supposed superseded the order of the district court appointing a receiver, did supersede that' order, and that the $1,500-bond subsequently executed by the appellants to supersede the order of the court appointing a receiver ivas executed without consideration. But an order appointing a receiver is not one that may be superseded as a matter of right. Whether it may be superseded, is a matter resting in the discretion of the court, and if an order' be made allowing it to be superseded the court, in its discretion, may fix the terms and conditions upon Avhich the supersedeas may become operative. (Home Fire Ins. Co. v. Dutcher, 48 Neb. 755; State v. Stull, 49 Neb. 739.) The $1,000-bond executed by the appellants Avas conditioned against waste according to the third clause of section 677 of the Code of Civil Procedure. This section of the Code has no application to an appeal from an order appointing a receiver, and the bond of $1,000 executed by appellants did not supersede the order made by the court appointing the receiver. We do not think the argument of the appellants that the $1,500-bond executed by them to supersede the court’s order appointing a receiver was without consideration is tenable. The receiver of the court was entitled to possession of the premises involved in the foreclosure suit, — entitled to the rents and profits of these premises pending that action, and the appellants in effect said to the court: “Grant us a supersedeas of the order appointing a receiver; permit us to remain in possession of the premises and collect
4. The next argument is that the ajiplication for an order to show cause, or, as counsel for appellants style it, “the petition” does not state a cause of action. The application alleges that the appellants gave a bond conditioned that they would account for and pay into court the rents and profits of the premises in controversy which might be legally required of them during the time they .occupied and controlled the said premises in case the order appointing the receiver should be affirmed. There was another allegation in the -application that the rental value of the premises during the time they were in possession of the appellants was $75 per month, and there was a prayer in the application-that the appellants might be required to show cause why judgment should not be rendered against them for the rental value of said premises. It is said in argument that a contract to account for rents and profits of premises is not a contract to pay their rental value. If this argument be correct, we are unable to see that the petition does- not state a cause o’f action. But we think in this case the contract of the appellants to account for the rents and profits of the premises in controversy during the time they occupied
5. A final argument is that the finding made by the district court as to the rental value of the property during the time it was held by appellants is unsupported by sufficient evidence. We think it is. The decree of the district court is right and is
Affirmed.