Street v. Smith

75 Neb. 434 | Neb. | 1906

Oldham, C.

This is an appeal from the confirmation of a sale in a foreclosure proceeding. The facts involved in the controversy are these: On the 14th of March, 1901, Josephine F. Street, as plaintiff, filed her petition in the district court for Hitchcock county, Nebraska, against Elizabeth M. Smith and others for the foreclosure of a. real estate mortgage on certain lands in that county owned by defendant Elizabeth M. Smith. On the lgth day of November, 1901, a.decree of foreclosure was rendered as prayed for in the petition. On the 25th of November, 1902, an order of sale was issued, and on the 29th day of December, following, the lands were bid in by plaintiff’s attorney for the plaintiff. On the 31st day of March, 1903, this sale was confirmed and deed ordered. On the confirmation of the sale, Charles B. Diehl filed a claim for the surplus, as purchaser of the equity of redemption of Elizabeth M. Smith pending the litigation, and the surplus was ordered to be paid to him, which was done. On June 20, 1903, the attorney of plaintiff filed an application for Irving W. Street, in Avhich it Avas made to appear that the plaintiff, Josephine F. Street, had departed this life on May 22,1902, seven months before the sale and six months before the order of sale Avas issued. It appeared from this application that Irving W. Street Avas the husband of the plaintiff, and that plaintiff had left a will devising all her property, except a few chattels, to Irving W. Street. The application, lioAvever, did not show who the executor of the will was, or that the will had ever been admitted to probate. The application prayed for an order vacating the order confirming the sale entered on March 31, 1903, and to authorize and direct the sheriff of the county to deliver to Irving W. Street a deed for the property pursuant to the bid of Josephine F. Street, deceased, and in all things to confirm said sale made as aforesaid in the name of Irving W. Street. While this application was pending, Charles B. Diehl, owner of the equity of redemption of the lands, filed a motion, asking to. have the same stricken from the docket. This motion Avas overruled on April 11, 1904, and Diehl thereupon filed a showing that he had accepted part of the surplus in ignorance of the death of the plaintiff, and paid to the clerk of the district court for Hitchcock county the amount so received, and asked the court to direct it to be paid to the proper parties, when they Avere before it. On the same day he filed numerous objections to the final confirmation of the sale, and, among other things, denied the jurisdiction of the court to enter the decree prayed for by the plaintiff’s attorney. Objections Avere also filed to the confirmation in the name of Elizabeth M. Smith, grantor of Diehl, and ‘the original defendant in the cause of action. These objections were all overruled, and the sale Avas confirmed in the name of Irving W. Street on the bid of -Josephine F. Street, deceased. To reverse this judgment and order of confirmation, defendants Smith and Diehl have appealed to this court.

It is first urged by appellee that Charles B. Diehl is a mere interloper in the case, and not a party in interest and cannot, for that reason, maintain the appeal. With this contention we cannot agree. The record shows that he was the purchaser of the equity of redemption of the lands in controversy during the pendency of the suit; that he appeared in the case and was permitted to show, without objection, that he was the owner of the equity of redemption, and the surplus was paid to him on that showing. Having purchased the rights of the defendant pending the litigation, he was entitled to appear in the action at each subsequent stage, either in his own name or in the name of his grantor. Howell v. Alma Milling Co., 36 Neb. 84; Alexander v. Overton, 52 Neb. 283.

It is next urged by appellee that, as no bill of exceptions was settled in this case, the appeal should be dismissed. This would be true if any testimony admitted could have sustained the judgment of the district court, but on the showing of Irving W. Street himself he was not entitled to the order prayed for. The order of sale of the land, issued after the death of the plaintiff, was a nullity, and the bid of the plaintiff’s attorney at such sale for her, as her agent and attorney, was likewise a nullity. On the showing made by Irving W. Street, the only order that (the district court could have rendered was an order setting aside the decree of confirmation of the sale, and it should then have revived the action in the name of the legal representative of plaintiff before any other proceedings were had.

We therefore recommend that the judgment of the district court be reversed and the cause remanded for further proceedings in accordance with this opinion.

Ames and Letton, CC., concur.

By the Court: For the reasons given in the foregoing opinion, it is ordered, that the judgment of the district court be reversed and the cause remanded for further proceedings according to law.

Reversed.