Ecklund v. Willis

60 N.W. 1026, 42 Neb. 737, 1894 Neb. LEXIS 506

• Court: Nebraska Supreme Court
• Decided: November 20, 1894
• Docket: No. 5723
• Status: Published

Opinion

Norval, C. J.

Plaintiff, and appellee, filed a petition in the district court to foreclose a mortgage upon real estate in North Lincoln, and in his petition he applied for the appointment of a receiver to collect the rents and profits, on the ground that the mortgaged premises are insufficient security for plaintiff’s claim, and the insolvency of the defendants. Subsequently, at the September term, 1891, of said court, upon due notice to the defendants, Paul F. Clark was appointed receiver of the property to take charge of the same and collect the rents and profits accruing therefrom, who gave bond in the sum fixed by the court, and the plaintiff likewise executed a bond to the defendants, with approved sureties, in the sum of $1,000. At the February term, 1892, the defendant Elijah J. Willis filed a motion to vacate the order appointing a receiver, which motion was denied by the court, and he excepted to the ruling. At the same term a decree of foreclosure was rendered, and the defendants filed a request for a stay, in accordance with the provisions of the statute. The defendant Elijah J. Willis appeals from the overruling of his motion to vacate the order appointing a receiver.

The first point made in the brief of appellant is that the receiver did not give a bond in a large enough sum. A sufficient answer to this is that neither when the order appointing the receiver and fixing the amount of his bond was made, nor in the motion to vacate such order, was any objection urged as to the size of the bond required. If appellant desired that question reviewed, he should have presented the same to the trial court in his motion to vacate, and obtained a ruling thereon. We have to do alone with the decision of the lower court in the motion to vacate its order appointing a receiver, and questions not raised therein cannot be urged as grounds for reversal. (Hurford v. Baker, 17 Neb., 443.)

It is lastly insisted that the appointment of a receiver was unnecessary in this case. Section 266 of the Code of Civil Procedure provides for the appointment of a receiver “in an action for the foreclosure of a mortgage when the mortgaged property is in danger of being lost, removed, or materially injured, or is probably insufficient to discharge the mortgage debt.” The appointment was made on the ground that the mortgaged premises were inadequate to pay the plaintiff’s claim. It appears from the record that there are mortgage liens upon the property prior in point of time to plaintiff’s, amounting, including interest, to about $5,000. The amount of the decree in favor of the plaintiff, exclusive of costs, is $635.82. The motion to vacate the order appointing a receiver was heard upon affidavits, four on either side. The market value placed upon the property by plaintiff’s witnesses ranged from $4,200 to $5,000, while the defendant’s witnesses testified that it was worth from $9,950 to $14,200. There was sufficient testimony before the court, if plaintiff’s witnesses were truthful, upon which to predicate a finding that the mortgaged property was inadequate to pay off the mortgage debt, after satisfying all prior liens. The testimony as to value was conflicting, and, following the rule universally adhered to by this court, the finding in the case at bar will not be disturbed.

There is another reason why the case should not be reversed. It appears from the transcript that after making the order of which complaint is made, a decree of foreclosure was rendered in the action against the defendants, and that the appellant applied for, and obtained, a stay of the order of sale. This step is a waiver of the right to have reviewed any of the proceedings in the case prior to the taking of such stay. (Code, sec. 477e; McCreary v. Pratt, 9 Neb., 122; Miller v. Hyers, 11 Neb., 474; Sullivan Savings Institution v. Clark, 12 Neb., 578; Banks v. Hitchcock, 20 Neb., 315.)

Affirmed,