State Bank v. Green

8 Neb. 297 | Neb. | 1879

Maxwell, Ch. J.

In April, 1874, the appellant executed and delivered to John I. Redick three promissory notes each for the sum of $8,333.33, payable in one, two and three years, with interest at 10 per cent, and to secure the payment of the same executed a mortgage upon certain real estate in Washington county. It is alleged in the petition that the first note was paid. The second note was indorsed by Redick and transferred to the appellee before maturity. Upon the maturity of the note it was protested for non-payment and notice given to Redick.

In April, 1876, an action of foreclosure for the amount due on the second note was instituted in the district court of Washington county — Green, Redick, and the Omaha National Bank being made defendants; and at the November term, 1876, of said court, a decree for the surtí of $10,609.24 and costs, and attorneys’ fees, was taken against Green and Rédick, the Omaha National Bank being permitted to withdraw its claim without prejudice.

A sale of the mortgaged property was had under said decree, which sale was confirmed on the sixth day of December, 1877, and an order made tbat tbe plaintiff have execution for the deficiency against Green and Redick for tbe sum of $9,944.73. It was further ordered tbat in case Green witbin forty-eight hours executed an undertaking to tbe plaintiff in tbe sum of $3,000.00, to pay tbe plaintiff $2,000.00 in sixty days, tbat in case of tbe payment of tbe money witbin tbat time be should bave a re-conveyance of tbe property. Tbe defendant (appellant) excepted to tbe order, and tbe supersedeas bond was fixed by tbe court at $2,000.00. On tbe next day Green executed a supersedeas bond for tbe sum of $2,000.00, with sureties, which was approved by tbe clerk of tbe court. Tbe following was attached to tbe bond: “lam satisfied tbat Ered. King is good surety on any bond to the amount of $2,000.00.

“ (Signed), G. E. PRITCHETT.”

No motion was made to set aside or amend tbe bond, but on or about tbe first day of March, 1878, tbe following was filed in tbe district court of Washington county:

“The State Bask oe Nebraska!

v- Í

“ John H. Green, et al. j

“To tbe clerk of said court: Please issue an execution directed to tbe sheriff of Douglas county for tbe deficiency in tbe above ease, being deficiency found due by tbe order confirming tbe sale herein,” which was signed by tbe plaintiff’s attorney, to which was appended tbe following: “We hereto'consent to tbe above request being complied with by tbe clerk of said court,” which was signed by Green’s attorneys.

Upon this request and waiver being filed with tbe clerk of tbe district court of Washington county, an execution for tbe sum of $9944.73 deficiency was issued to tbe sheriff of Douglas county, and levied upon certain real estate of Green, but for want of time to advertise, it was returned without a sale having 'been made. Several orders of sale were issued and returned after said levy without a sale being had. But on the seventh day of October, 1878, said real estate was sold under said levy, upon an order of sale, and the sale was confirmed, on the sixth of the following November. Oreen resisted the confirmation of the sale and “asked to have the execution heretofore issued in said cause and the order of sale upon which said real estate was sold each set aside for the reason that at the time of the issue of said writs there was on file in said cause a good and sufficient supersedeas bond as provided by law.” From the order confirming the sale the defendant Oreen appeals to this court.

The appellee contends that the supersedeas bond did not stay the execution. First — Because no appeal was taken. Second — Because the bond was not such as is required by the law. Section one of the act “to provide for appeals in actions in equity” (Gen. Stat., 716), provides that “ the party appealing shall, within six months after the date of the rendition of the judgment or decree, or the making of the final order, procure from the clerk of the district court, and file in the office of the clerk of the supreme court, a certified transcript of the proceedings had in the district court, etc.

Section three provides that “No appeal in any case in equity, now pending and undetermined, or which shall hereafter be brought, shall operate as a supersedeas, unless the appellant or appellants shall, within twenty days next after the rendition of the judgment or decree, or the making of such final order, execute to the adverse party a bond, with one or more sureties, as follows: 1

“First. When the judgment or decree is for the payment of money the bond must be in double the amount of the judgment.

“Second. Where the judgment or decree directs the execution of a conveyance the bond shall be in such sum as may be prescribed by the district court or a judge in vacation.

“Third. When the judgment or decree directs the sale or delivery of possession of real estate the bond to be in such sum as the court or the judge thereof in vacation shall prescribe.”

Section four provides: “Before any bond executed as aforesaid shall operate as a supersedeas, the execution of the same, and the sufficiency of the sureties therein, must be approved by the clerk of the court in which the judgment or decree was rendered or final order was made.”

The right of review by appeal was unknown to the common law. It was borrowed from the civil law and incorporated into the chancery practice of England. It is regulated entirely by statute in this state. The statute requires the appellant, in order to stay the operation of the judgment, to file a proper bond, approved by the ;elerk, within twenty days from the time of the rendition of the judgment, order, or decree. Upon the bond being filed and approved, the power of the court below to proceed in the case is suspended until the bond is set aside, modified, or the appellant fail^ to perfect his appeal within the time required by the statute. The filing of the bond is a proceeding in the case and is notice to the adverse party. In addition to this, rule YIIE of this court provides for notice to the appellee when the case is docketed in the supreme court. No other notice is required under our statute, although in some of the states, under their peculiar statutory provisions, notice must be given, and it was formerly so in this state under section six hundred and seventy-five of the code, as it then existed. See Redgrave v. Baptist Church, 1 Neb., 345. But that provision has since been repealed.

The appellant has six months in which to file his transcript .in the supreme court after the- date*of the rendition of the judgment, order, or decree. Glore v. Hare, 4 Neb., 131. Tootle v. White, Id., 406. The appellee waived the service of notice as required by rule YIH, and is not in a condition to complain of the failure to be served with notice. The first objection of the appellee, therefore, is not well taken.

The amount of the bond was evidently fixed by the court under the provisions of the third subdivision of section three, as the effect of the confirmation of' the sale would be to divest the defendant of the possession of the real estate in question. This being the case, the appeal in that case was taken from the order confirming the sale. The amount of deficiency is contingent altogether upon the amount realized from the sale of the real estate. If, therefore, the order confirming the sale should be reversed, no- order of execution for the deficiency could be made until a re-sale of the premises, as the amount could not be ascertained. This evidently was the view taken by the court below, and we think it correct. If any particular objection existed against the bond it should have been made in the first instance in the court below, but the bond apparently is sufficient in form and amount, and it cannot be treated as void. The second objection, therefore, is overruled.

But it is claimed that the force and effect of the supersedeas bond was waived by the consent of the attorneys for Green. Our statute provides that an attorney has power:

First — To execute in -the name of his client a bond for an appeal, certiorari, writ of error, or any other paper necessary and proper for the prosecution of a suit already commenced.

Second — To bind Ms client by Ms agreement in respect to any proceeding witMn the scope of Ms proper duties and powers; but no evidence of any such agreement is receivable, except tbe statement of the attorney himself, his written agreement signed and filed with the clerkj or an entry thereof upon the records of the court,

Third — To receive money claimed by his client in an action or proceeding during the pendency thereof or afterwards, unless he has been previously discharged by his client, etc. [Gen. Stat., 95.]

An attorney has general authority from his client in all matters which may reasonably be expected to arise during the progress of a ease. He may make agreements as to continuances, evidence, and the conduct of the trial, because from the nature of the case he must be permitted to use his skill and judgment in the management of the case. And if in such matters he enters into any agreement within the scope of his authority, his client is bound thereby, even though contrary to his interest. McCann v. McLennan, 3 Neb., 29. Palmer v. The People, 4 Id., 76. Rich v. State National Bank, 7 Id., 201.

But an attorney, by virtue of this general authority, cannot authorize an execution to issue against the property of his client while a proper supersedeas bond is on file to provide for an appeal. This is admitted by the attorney for the appellee, but it is claimed the attorneys for Green had special authority from him for that purpose. Green denies positively any such authority, and the burden of proof is on the attorneys to show that such authority existed. No written authority has been shown,' and the mere oath of one of the attorneys as to such authority is not sufficient to overcome the positive denial under oath of Green. It follows that Green, having given the necessary bond for an appeal, the power of tbe district court to issue execution on the judgment was for tbe time being suspended, and tbe clerk bad no authority to issue tbe execution and orders of sale. Tbe court therefore erred in confirming tbe sale. Tbe judgment of tbe district court is reversed and tbe cause remanded for further proceedings.

Judgment accordingly.