69 Neb. 27 | Neb. | 1903
Plaintiff in error, Ella M. Rose, obtained a decree in the district court for the foreclosure of a certain real estate mortgage against Dempster Mill Manufacturing Company, defendant in error, together with certain others who were the mortgagors. The premises were sold for much less than the amount due on the .decree; the sale was confirmed, and afterwards a deficiency judgment was rendered, by default, against the defendant for the remainder due on the decree, on the alleged ground that it had as- . sumed and agreed to pay the mortgage debt. Afterwards
In the case of Morse & Co. v. Engle, 26 Neb. 247, it was held that such an application to open up> a decree was not a new action but a proceeding in the original one. A final order or judgment in such a proceeding,.to be appeal-able, must at once put an end to the action by declaring that the plaintiff has or has not entitled himself to recover the remedy for which he sues.
Tried by this test the order in question is not a final one,. but merely vacates the decree or deficiency judgment and allows the defendant' to 'file an answer and malee its defense. It leaves the original action to recover a deficiency judgment undetermined in the trial court. Cockle Separator Mfg. Co. v. Clark, 23 Neb. 702; Merle & Heaney Mfg. Co. v. Wallace, 48 Neb. 886.
This question was again before the court in Browne v. Croft, 3 Neb. (Unof.) 133. The opinion on rehearing will be found in 3 Neb. (Unof.) 134. Following the cases above cited it was again held that an order vacating a judgment and permitting an answer to be filed, thus leaving the case for trial on its merits in the district court, is not a final judgment in the case from which appeal or error will lie. Before such an order can be reviewed, there must be a final judgment in the case which disposes of it on its merits.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the motion be sustained and the proceeding in error dismissed.
Proceeding in error dismissed. '