35 Neb. 707 | Neb. | 1892
This is an original application for a writ of mandamus to compel the respondent, one of the judges of the fourth judicial district, to fix the amount of an appeal bond. The material facts are as follows: W. W. Morsman obtained a decree of foreclosure in the district court of Douglas county
We are also referred to the third subdivision of section 677 of the Code of Civil Procedure, which provides that “when the judgment, decree, or order directs the sale, delivery, or possession of real estate, the bond shall be in such sum as the court or judge thereof in vacation shall prescribe, conditioned that the appellant or appellants will prosecute such appeal without delay and will not, during the pendency of such appeal, commit, or suffer to be committed, any waste upon such real estate.” Under the above provision it is claimed by the relator that he is entitled, as a matter of right, not only to an appeal from the order of confirmation, but also to have execution of the deed to t’|J purchaser and the delivery of possession thereunder stayed during the pendency of his appeal, and to that end it is the duty of the district court to fix the amount of his appeal undertaking. It is true that under our practice an appeal will lie from a final order in an equitable proceeding, as, for instance, an order of confirmation. But what is the force and effect of an appeal from such an order under our practice and how. is it to be tried in this court? An examination of this question is attended with much confusion, owing to the fact that in some states all appellate proceedings are denominated appeals, while in others the distinction between appeals in equity and review upon petition in error is strictly adhered to. Ours appears to be a modified form of the old practice, and although the distinction between appeals and proceedings in error is maintained, the difference in cases like this exists in name rather than in fact. An appeal, strictly speaking, is the removal of a cause from a lower to the appellate'eourt for trial de novo. Mr. Powell,'
Writ of mandamus denied.