61 Neb. 553 | Neb. | 1901
We have heretofore decided that the appeal taken in this action should be dismissed because the decree as against the appellants was not final and, therefore, not appealable. Parmele v. Schroeder, 59 Nebr., 553. A motion for a rehearing, accompanied by a very able brief, led us to the conclusion that there was sufficient merit in the contention of appellants’ counsel to justify a reexamination of the question. We have taken pains to quite fully examine the authorities to rvhich our attention has been called by counsel on both sides of the controversy, and after a careful consideration of the subject in the light of all the information obtainable, we are more firmly convinced that the conclusions reached and announced in the first opinion are sound, well grounded in principle and should be adhered to.
The suit was an ordinary action in equity for the foreclosure of a real estate mortgage, the sale of the premises mortgaged to satisfy the amount found due and to charge the appellants personally with any deficiency that might remain after the sale of the mortgaged- property and the application of the proceeds to pay the mortgage debt. The court found the appellants personally liable for the mortgage indebtedness, and in the decree it was adjudged that if the money arising from the sale of the property shall be insufficient to satisfy the amount found due, the
In Clapp v. Maxwell, 13 Nebr., 542, it is held in the second and third paragraphs of the syllabus: “By a decree of foreclosure of a mortgage upon real estate, a court possesses no power to give a lien upon, or to affect any other property of the mortgagor until that included in the mortgage is exhausted”; and, “a general execution cannot be issued on a decree of foreclosure, except by order of the court, made on the report of sale, and for a deficiency ascertained after the mortgaged property is exhausted.” In that case the decree adjudged and decreed that the mortgagee should have and recover of the mortgagor the amount of the debt found dne, and yet the court held that as to any personal judgment attempted to be rendered, it was a mere nullity, and that such judgment could not be rendered until after report of the sale of the property mortgaged. Says Mr. Chief Justice Lake in the opinion: “The decision of the question of the plaintiffs’ right to the injunction sought, independently of the incidental question of homestead, depends entirely upon the effect that must be given to the judgment in the foreclosure suit. If, as its form in part might indicate, it is really a judgment in personam, and effective as such, then it follows that the execution was properly issued, and the plaintiffs’ right to relief is
In Devries v. Squire, 55 Nebr., 438, it is held: “A deficiency judgment in an action to foreclose a real estate mortgage under the provisions of our Code of Civil Procedure, as it existed prior to the legislative session of 3897 (see Code of Civil Procedure, sec. 847, Compiled Statutes, 1895), could not be rendered until the ‘coming in of the report of the sale’ of the mortgaged property.”
In Brown v. Johnson, 58 Nebr., 222, it is said by Nokval, present C. J.: “The litigation of the liability for a deficiency could be as appropriately and satisfactorily carried on, and the question adjudicated, after the sale, as prior to the rendition of the decree. The usual and better practice is not to determine the liability of a defendant in a foreclosure for a deficiency judgment until after the report of the sale, when, for the first time, it can be definitely ascertained that a deficiency actually exists.”
In Parr v. Lindler, 18 S. E. Rep. [S. Car.], 636, under a statute substantially the same as ours, it is held that a personal judgment for a deficiency in a foreclosure proceeding can not be rendered until after the sale and a report thereof has been made, and that a personal judgment rendered in a decree of foreclosure is utterly null and void. Says Mclver, J., in a concurring opinion: “If, then, as is most conclusively shown in the opinion of Mr. Justice McGowan, no personal judgment can be rendered for any deficiency until after the sale of the mortgaged premises, when alone the amount of such deficiency can be ascertained, it follows, necessarily, as it seems to me, that anything purporting to' be a judgment for such deficiency, rendered before the amount thereof could possibly be ascertained, would be a mere nullity, and would afford no basis for an execution to enforce it. Indeed, it is utterly incomprehensible to me how a judgment for the payment of money could be rendered before the amount thereof had been, or could possibly be, ascer
In Pingrey on Mortgages (vol. 2, sec. 2029) the same doctrine is announced as to the rendition of a judgment for a deficiency.
The proper deductions from the foregoing are that a final decree or judgment for a deficiency in foreclosure proceedings can not be rendered until after the incoming of the report of the sale of the mortgaged property, and that if in form a judgment is in fact rendered, it is a mere nullity, which does not conclude the rights of the parties thereto, or upon which execution may issue.
In Keystone Iron Co. v. Martin, 132 U. S., 91, the question as to what is a final decree or order which is appealable has received very careful and thorough consideration, and many cases are cited in support of the proposition that the decree is not final until the court has finally determined and disposed of the entire controversy between the parties, so that nothing remains to be done except to ministerially execute its provisions in the court in which it is rendered. Chief Justice Waite, in Bostwick v. Brinkerhoff, 106 U. S., 3, states the principle as follows: “The rule is well settled and of long standing, that a judgment or decree, to be final, within the meaning of that term as used in the acts of congress giving this court jurisdiction on appeals and writs of error, must termiate the litigation between the parties on the merits of the case, so that if there should be an affirmance here, the court below would have nothing to do but to execute the judgment or decree it had already rendered.” To the
In any view of the question the rule seems to be that the decree, to be final, mnst be definite, certain and capable of immediate enforcement, and that the subsequent proceedings are only means of executing the decree.
In Longworth v. Sturges, 6 Ohio St., 143, 154, it is said that in order that a decree shall be final, there must be a disposal of the whole merits of the cause and the suitors out of court, before a decree can acquire that character of finality which subjects it to review.
In McGourkey v. Toledo & O. C. R. Co., 146 U. S., 536, 545, it is said by Mr. Justice Brown: “If, however, the decree of foreclosnre and sale leaves the amount due upon the debt to be determined, and the property to be sold, ascertained and defined, it is. not final, [citing Railroad Co. v. Swasey, 23 Wall. [U. S.], 405, and Grant v. Phœnix Ins. Co., 106 U. S., 429]. A like result follows if it merely determines the validity of the mortgage, and, without ordering a sale, directs the case to stand continued for further decree upon the coming in of the master’s report.” And further on in the opinion it is observed: “It may be said in general that if the court make a decree fixing the rights and liabilities of the parties, and thereupon refer the case to a master for a ministerial purpose only, and no further proceedings in court are contemplated, the decree is final; but if it refer the case to him as a subordinate court and for a judicial purpose, as to state an account between the parties, upon which a further decree is to be entered, the decree is not final”; citing Craighead v. Wilson, 18 How. [U. S.], 199, and Beebe v. Russell, 19 How. [U. S.], 283.
It can hardly be said, we think, that it is not required, before the decree sought to be appealed from can be effective, or determine-finally the rights of the parties, that a further order or entry, judicial in its nature, is required
We are referred to decisions by the supreme court of Wisconsin in support of the views contended for by counsel for appellants, but upon examination we find that the procedure in that state is regulated by statute, and that an order directing a personal judgment against a defendant or any deficiency after sale of the mortgaged premises is appealable, as it “involves the merits of the action,” which fact determines the right of appeal, regardless of its finality.
The decisions of the supreme court of Michigan are also appealed to as sustaining appellants’ position, but upon examination we find that in that state, while the practice is different, a decree of personal liability is held not to be final, but to be contingent and declaratory only of the future order, upon which a personal judgment may be rendered, and can fix no rights; that the jurisdiction of the court is to be exercised, and the trial of liability had on a new hearing, after the deficiency is reported. Prentis v. Richardson’s Estate, 76 N. W. Rep. [Mich.], 381; Shelden v. Erskine, 44 N. W. Rep. [Mich.], 146.
Without further citations of authorities, of which there are many, we are firmly of the opinion that the decree sought to be appealed from, as to appellants, is interlocutory in character only, and before it can be made effective and final, further judicial action is required of the court in which the proceedings are pending, which fact must be held to be decisive of the question of finality.
The judgment of dismissal heretofore rendered is adhered to.
Appead dismissed.