On аppeal from a judgment confirming a judicial sale in a suit to foreclose a mortgage, mortgagors, defendants, presented an original application to the supreme сourt
Mortgagee, plaintiff, objected to the granting of a moratorium on the grounds, among others, that the quеstion as to the right of defendants to such relief is not presented by the record in the foreсlosure suit and that the moratory act of the legislature is unconstitutional and void. These questiоns were discussed in briefs and orally argued at the bar. If the preliminary question is not presented by thе record, the constitutional question should not be considered herein, as, in that contingency, an opinion would be mere dictum, open to future controversy. In an action in which the validity of the moratory act must be authoritatively determined for the first time, the court of original jurisdiсtion and the litigants' should not be embarrassed by previous dicta on that subject.
This is a suit in equity to foreclose a mortgage on lands of defendants in Cuming county. It was properly commencеd and determined in the district court for Cuming county. The amount due on the mortgage was $12,076 April 8, 1931. On that datе, in default of payment, a decree of foreclosure was entered. Defendants took a stay of execution for nine months. Thereafter, under an order of sale issued Februаry 10, 1932, the sheriff sold the mortgaged land to plaintiff for $12,000. From an order confirming the sale, defendants appealed to the supreme court, where the confirmation was affirmed April 14, 1933, after a full hearing and a review of the record. Wallace v. Clements,
The application for a moratorium wаs filed in the supreme court April 3, 1933, while the cause was under advisement, 11 days prior to the affirmаnce of the judgment of the district court and 32 days after the moratory
“The supreme court shall have jurisdiction in all cases relating to the revenue, civil cases' in which the state is a party, mandamus, quo warranto, habeas corpus, and such appellate jurisdiction as may be provided by law." Const, art. V, sec. 2.
This original jurisdiction is thus limited to cases relating to the subjects thus enumerated and cannot bе extended to other subjects by legislation. State v. Hall,
Is the constitutionality of the moratory act a question presented by the record? It is well-settled law that an issue not raised in the trial сourt is not generally cognizable in the appellate court. First Trust Co. v. Glendale Realty Co., ante, p. 283, and cases cited in the opinion. The application is no part of the record for review in the case at bar. It was not, and of course could not have been, presented to the district court before trial and judgment below. Such a remedy was not then in existence. It is argued, however, that the supreme court has jurisdiction of the parties and subject-matter and may remand the cause to the court below for the purpose of granting the hew statutory relief in an еmergency. The application does not require a departure from well-settled rules of appellate procedure. The district court administered justice according to well-settled rules' of law and equity when the judicial sale was confirmed and plaintiffs right to pоssession adjudicated. There was no error in the proceedings or decree. The granting of a moratorium until March 1, 1935, permitting defendants
The application herein for a moratorium is therefore denied and the question as to the validity of thе moratory act left open for future determination in a case wherein it is properly raised.
Moratorium denied.