73 Neb. 807 | Neb. | 1905
Lead Opinion
This is an appeal from the order of the district court for Douglas county awarding a writ of assistance in a foreclosure proceeding, after the confirmation of the sale, to put the purchaser in possession of the premises described in the sheriff’s deed. The writ was awarded after notice to the appellants and a hearing of their objections by the court.
The original cause was reviewed by this court in an opinion rendered by Sedgwick, J., and reported in 63 Neb. 883. In this opinion the issues are fully set forth, and need be only summarily restated for the purposes of the conclusions about to be reached.
It appears from the opinion just cited that the action to foreclose the mortgages Avas prosecuted against Frederick Ruhe, Avho executed the mortgages — one in April, 1891, and one in .April, 1893; that, AArhen the issues AArere joined on the foreclosure of the mortgages, the present appellants, Herman Ruhe and his brothers and sisters, sought to in
We think that, under the rule just announced by this court in Escritt v. Michaelson, ante, p. 634, the court erred in granting the writ. If the purported will of Fredericka Ruhe is for any reason invalid, it is clear from the showing made that the appellants are the owners in fee of the premises, unaffected by the decree of foreclosure
We therefore recommend that the judgment of the district court be reversed and the cause remanded, with directions to the district court to refuse the writ.
By the Court: For the reasons given in the above opinion, the judgment of the district court is reversed and the cause remanded, and the district court is instructed to refuse the writ.
Reversed.
Rehearing
The following opinion on motion for rehearing was filed October 5, 1905. Motion denied:
: It appears that these defendants’ possession of the premises has been continuous since long before the existence of the lien under which the plaintiff has acquired and now claims title. They were not made parties to the foreclosure proceeding, but on the other hand were not allowed to become parties upon Iheir application in which they represented they had interests in the land which they desired to defend. Under such circumstances it is clear that no writ of assistance should be awarded.
Motion for rehearing
Overruled.