40 Neb. 441 | Neb. | 1894
On the 6th day of November, 1893, E. Harris obtained a decree of foreclosure of a mortgage in the district court
“A supersedeas is a statutory remedy. It is only obtained by a strict compliance with all the required conditions, none of which can be dispensed with. Time is an essential element in the proceeding and one which neither the court nor the judge can disregard. If a delay beyond the limited time occurs, the right to the remedy is gone and the successful party holds his judgment or decree freed and discharged from this means of staying proceedings for its collection or enforcement. This is a right which he has acquired and of which he cannot be deprived without due process of law. While the court may enter an order in a cause nunc pro tuno where the action asked for has been
In State v. Theile, 19 Neb., 220, the defendant in a foreclosure decree, for the purpose of staying the execution thereof, filed a bond conditioned that “he shall abide the judgment and decree if the same should be affirmed and pay the costs,” whereas the statute provided that the supersedeas bond in such case should contain a condition that the appellants “will prosecute such appeal without delay, and will not during sucli appeal time commit, or suffer to be committed, any waste upon such real estate.” Application was made to the clerk of the district court, after the filing by the defendant in the decree of foreclosure of the bond conditioned as above stated, for an order of sale for the mortgaged premises. The clerk refused to issue the order and this court granted him a mandamus compelling him to do so.
In State v. Moores, 29 Neb., 122, this court said that it would not issue a mandamus compelling a clerk of a district court to issue an order of sale upon a decree of foreclosure where there had been no application to, and refusal by, the district court to direct its clerk to issue such order of sale.
The relator is not within the rule laid down in either of these cases. The remedy by mandamus is the last resort of the litigant. It is only when all other remédies have failed that he is entitled to this writ. Here the relator is now prosecuting proceedings in error in this court to reverse the order made by the district court. The relator, then, is not without a plain and adequate remedy at law. The effect of the order made by the district court was to deny to the relator the immediate execution of his decree; and for us to
Writ denied.