Oldham, C.
This suit had its origin in an action to foreclose a real estate mortgage instituted by Hester McLean against Charlotte McCormick and others in the district court for Antelope county, Nebraska. Pending an appeal from an order- of confirmation of sale, at which plaintiff McLean was the purchaser, he transferred his interest in the land by quitclaim deed to one Michaelson. Upon an affirmance in this court of the order of confirmation, a sheriff’s deed was issued to McLean. Michaelson thereafter applied for a writ of assistance against all persons claiming under the defendants in the foreclosure suit. David Eseritt, one of the plaintiffs in error in this case, resisted the application of Michaelson for a writ of assistance, claiming to be a lessor and purchaser of the land without notice of the proceeding. The application of Michaelson was granted by the district court and a writ of assistance ordered, to which order and judgment Eseritt excepted, and applied to the court for a supersedeas bond to stay the writ pending an appeal from the order in this court. This application Avas granted, the court fixing the amount- of the bond at $1,000, and imposing as one of the conditions that Escrit-t should pay Michaelson the rents and profits of the premises while he remained in possession, in the event the order should be affirmed in the supreme court. The bond was executed with Eseritt as principal, and William Randall and C. D. Gardner, the other plaintiffs in error herein, as sureties, and delivered to the clerk of the district court and duly approved by him. Eseritt prose[636]*636cuted Ms appeal, and the judgment of the lower court was affirmed in an opinion Avritten by Pound, 0., Avhich is not officially reported, but may be found in á Neb. (Unof.) 187. After the mandate in this case liad been returned to the district court, Michaelson instituted the case at bar for judgment for rents and profits of the lands during the pendency of the appeal on the supersedeas bond executed by plaintiffs in error. In the petition filed by Michaelson, he alleged the order of the district court for the possession ,of the real estate, the giving of the supersedeas bond for the purpose of preventing the issuance of a writ of assistance, the filing and approving of the bond, with the conditions named, the removal of the cause to the supreme court, the final determination of the cause adversely to the appellant, and that the appellant (Escritt) had remained in possession pending his appeal, and had the use and occupation of the premises, and that the reasonable value of the rents and profits for such time Avas $600, for Avhich he prayed judgment against Escritt and the sureties on his supersedeas bond.
The defendants beloAV, Avho are plaintiffs in error here, filed ansAvers separately, admitting each allegation of the petition, except as to the value of the rents and profits, and denied the authority of the court to incorporate the provision in the supersedeas bond which provided for the payment of rents pending the appeal. A general demurrer was interposed to each of these ansAvers and sustained by the district court, and the defendants refusing to further plead were adjudged to be in default. The court proceeded to hear testimony as to the value of the rents and profits of the premises pending the appeal in this court (a jury having been Avaived by plaintiff), and thereupon entered judgment in favor of the plaintiff in the court beloAV in the sum of $600, jointly, against all the defendants, and omitting to find which was principal and which were sureties on the obligation. To reverse this judgment the defendants bring error to this court.
Three propositions are urged as grounds for the reversal [637]*637of the judgment of the trial court, the first being that there was no provision of law authorizing the condition in the supersedeas bond sued on which obligated the appellant to pay for rents and profits of the premises pending the appeal, and that as appellant was compelled to comply with this condition in order that he might stay the judgment of ouster, the bond could not be said to have been voluntarily entered into.
The question of the right of appeal from an order awarding a writ of assistance, after the sale is confirmed and deed ordered in a foreclosure proceeding, is not entirely free from doubt under the authorities. In Beatty v. De Forrest, 27 N. J. Eq. 482, it was held that, after a sale in a foreclosure suit, where the purchaser has got his deed, a writ of assistance will go ex debito justitiæ to put him in possession. Beeseley, C. J., in rendering the opinion said:
“In my opinion, a purchaser under a decree, having a sheriff’s deed, has as much right to the assistance of the court to be put in possession, as a plaintiff in a court of law has to an execution after judgment.” In this case it was held that an appeal would not lie from an order granting the writ. A different rule, however, and one nearer in conformity with the spirit of our practice has obtained in Michigan and California. In Baker v. Pierson, 5 Mich. 456, it was said:
“We think the appeal will lie, unless it was discretionary in the court below to grant or refuse the writ, as it might think proper. In this sense it was not discretionary; but it was discretionary in the sense in which the granting or refusing of an injunction is discretionary — that is, in a doubtful case. The discretion in all such cases is a legal discretion, to be exercised in doubtful cases only, and not where the case is clear and free from doubt. It is then a strict matter of right, which the court is as much bound to recognize and enforce as any other right of a party. The order denying the writ is a final order — one that is conclusive on the [638]*638right of the appellant; which right is, to be put in possession of the premises purchased by him at the mortgage sale, as an incident to his purchase. It is a right to the immediate possession of the premises against the parties to the foreclosure suit, and all who are bound by the decree, whether parties or not. It grows out of the decree and purchase under it, and can be enforced by the court rendering the decree, and no other court; and an order denying the writ of assistance to enforce it is a final order, touching the right, from which the purchaser may appeal to this court.”
In City of San Jose v. Fulton, 45 Cal. 316, it was held: “The writ of assistance is a summary proceeding resorted to under the rules of chancery practice to give effect to the decree, and presupposes that the rights of the parties are only such as follow upon the decree and the sale had pursuant thereto. If, however, it appear that those rights have been changed by reason of an agreement, or alleged agreement, subsequently entered into, so that the issuance of the writ would or might work injustice, it should be withheld, and the parties remitted to the ordinary remedies afforded in the courts.” In this case an appeal from a motion to vacate the order was entertained.
While the question of the right to an appeal from an order awarding the writ, after confirmation of sale is had and the deed ordered, has never been directly passed upon by this court, yet such order was reviewed on appeal in Merrill v. Wright, 65 Neb. 794, and the order of the district court awarding the writ was reversed. At the former hearing of the instant case, the appeal was entertained and determined on its merits.
Free access — add to your briefcase to read the full text and ask questions with AI
Oldham, C.
This suit had its origin in an action to foreclose a real estate mortgage instituted by Hester McLean against Charlotte McCormick and others in the district court for Antelope county, Nebraska. Pending an appeal from an order- of confirmation of sale, at which plaintiff McLean was the purchaser, he transferred his interest in the land by quitclaim deed to one Michaelson. Upon an affirmance in this court of the order of confirmation, a sheriff’s deed was issued to McLean. Michaelson thereafter applied for a writ of assistance against all persons claiming under the defendants in the foreclosure suit. David Eseritt, one of the plaintiffs in error in this case, resisted the application of Michaelson for a writ of assistance, claiming to be a lessor and purchaser of the land without notice of the proceeding. The application of Michaelson was granted by the district court and a writ of assistance ordered, to which order and judgment Eseritt excepted, and applied to the court for a supersedeas bond to stay the writ pending an appeal from the order in this court. This application Avas granted, the court fixing the amount- of the bond at $1,000, and imposing as one of the conditions that Escrit-t should pay Michaelson the rents and profits of the premises while he remained in possession, in the event the order should be affirmed in the supreme court. The bond was executed with Eseritt as principal, and William Randall and C. D. Gardner, the other plaintiffs in error herein, as sureties, and delivered to the clerk of the district court and duly approved by him. Eseritt prose[636]*636cuted Ms appeal, and the judgment of the lower court was affirmed in an opinion Avritten by Pound, 0., Avhich is not officially reported, but may be found in á Neb. (Unof.) 187. After the mandate in this case liad been returned to the district court, Michaelson instituted the case at bar for judgment for rents and profits of the lands during the pendency of the appeal on the supersedeas bond executed by plaintiffs in error. In the petition filed by Michaelson, he alleged the order of the district court for the possession ,of the real estate, the giving of the supersedeas bond for the purpose of preventing the issuance of a writ of assistance, the filing and approving of the bond, with the conditions named, the removal of the cause to the supreme court, the final determination of the cause adversely to the appellant, and that the appellant (Escritt) had remained in possession pending his appeal, and had the use and occupation of the premises, and that the reasonable value of the rents and profits for such time Avas $600, for Avhich he prayed judgment against Escritt and the sureties on his supersedeas bond.
The defendants beloAV, Avho are plaintiffs in error here, filed ansAvers separately, admitting each allegation of the petition, except as to the value of the rents and profits, and denied the authority of the court to incorporate the provision in the supersedeas bond which provided for the payment of rents pending the appeal. A general demurrer was interposed to each of these ansAvers and sustained by the district court, and the defendants refusing to further plead were adjudged to be in default. The court proceeded to hear testimony as to the value of the rents and profits of the premises pending the appeal in this court (a jury having been Avaived by plaintiff), and thereupon entered judgment in favor of the plaintiff in the court beloAV in the sum of $600, jointly, against all the defendants, and omitting to find which was principal and which were sureties on the obligation. To reverse this judgment the defendants bring error to this court.
Three propositions are urged as grounds for the reversal [637]*637of the judgment of the trial court, the first being that there was no provision of law authorizing the condition in the supersedeas bond sued on which obligated the appellant to pay for rents and profits of the premises pending the appeal, and that as appellant was compelled to comply with this condition in order that he might stay the judgment of ouster, the bond could not be said to have been voluntarily entered into.
The question of the right of appeal from an order awarding a writ of assistance, after the sale is confirmed and deed ordered in a foreclosure proceeding, is not entirely free from doubt under the authorities. In Beatty v. De Forrest, 27 N. J. Eq. 482, it was held that, after a sale in a foreclosure suit, where the purchaser has got his deed, a writ of assistance will go ex debito justitiæ to put him in possession. Beeseley, C. J., in rendering the opinion said:
“In my opinion, a purchaser under a decree, having a sheriff’s deed, has as much right to the assistance of the court to be put in possession, as a plaintiff in a court of law has to an execution after judgment.” In this case it was held that an appeal would not lie from an order granting the writ. A different rule, however, and one nearer in conformity with the spirit of our practice has obtained in Michigan and California. In Baker v. Pierson, 5 Mich. 456, it was said:
“We think the appeal will lie, unless it was discretionary in the court below to grant or refuse the writ, as it might think proper. In this sense it was not discretionary; but it was discretionary in the sense in which the granting or refusing of an injunction is discretionary — that is, in a doubtful case. The discretion in all such cases is a legal discretion, to be exercised in doubtful cases only, and not where the case is clear and free from doubt. It is then a strict matter of right, which the court is as much bound to recognize and enforce as any other right of a party. The order denying the writ is a final order — one that is conclusive on the [638]*638right of the appellant; which right is, to be put in possession of the premises purchased by him at the mortgage sale, as an incident to his purchase. It is a right to the immediate possession of the premises against the parties to the foreclosure suit, and all who are bound by the decree, whether parties or not. It grows out of the decree and purchase under it, and can be enforced by the court rendering the decree, and no other court; and an order denying the writ of assistance to enforce it is a final order, touching the right, from which the purchaser may appeal to this court.”
In City of San Jose v. Fulton, 45 Cal. 316, it was held: “The writ of assistance is a summary proceeding resorted to under the rules of chancery practice to give effect to the decree, and presupposes that the rights of the parties are only such as follow upon the decree and the sale had pursuant thereto. If, however, it appear that those rights have been changed by reason of an agreement, or alleged agreement, subsequently entered into, so that the issuance of the writ would or might work injustice, it should be withheld, and the parties remitted to the ordinary remedies afforded in the courts.” In this case an appeal from a motion to vacate the order was entertained.
While the question of the right to an appeal from an order awarding the writ, after confirmation of sale is had and the deed ordered, has never been directly passed upon by this court, yet such order was reviewed on appeal in Merrill v. Wright, 65 Neb. 794, and the order of the district court awarding the writ was reversed. At the former hearing of the instant case, the appeal was entertained and determined on its merits. We therefore conclude that under the practice prevailing in this state an appeal may be taken from an order awarding a writ of assistance on the same conditions as it may be taken from an order confirming a sale. In sound practice the writ of assistance should never issue except on motion and notice, as intervening rights not existing between the parties to the decree might be involved, or subsequent agreements as to pos[639]*639session might exist even between the parties to the suit which might affect the right to the writ.
Even if the filing of the bond to supersede the order was unauthorized, the question would still arise as to whether or not the plaintiff in error, having availed himself of this unauthorized relief and having filed a bond which kept him wrongfully in possession of the premises during the appeal, did not bring himself squarely within the doctrine announced by this court in, the recent case of United States Fidelity & Guaranty Co. v. Ettenheimer, 70 Neb. 147, in which it was held:
“A bond, given in an attempted appeal in an action of forcible entry and detention, conditioned for the payment of rent, is valid as a contract, if the obligor has by reason of the bond retained possession of the premises, though the statute authorizing such appeal is afterwards held unconstitutional.”
The second question relied upon is that the sustaining of the demurrer was prejudicial because the general denial with which the answers concluded fairly put in issue the amount and value of the rents and profits The contention would have some merit in it if the default of the defendants below had operated as a confession of the amount of damages prayed for in the petition, but under section 134 of the code, plaintiff was compelled to submit proofs as to the amount of his damages, although the defendants were adjudged in default, and this he did. Consequently, defendants were not prejuiced in any manner on this account.
There is, however, a technical error in the form of the judgment in that it does not find that plaintiff in error Escritt was principal, and that Randall and Gardner were sureties on the bond. In the recent case of Blaco v. State, 58 Neb. 557, it was announced that the failure of the clerk in recording a judgment to certify that certain of the defendants are sureties, -where such is the fact, is reversible error, though not presented to the trial court.
In conformity with this rule, we are compelled to rec[640]*640ommend that the judgment be, reversed and the cause remanded to the district court, with directions to render a judgment on the amount found, and certify therein that Escritt is principal on the bond, and Randall and Gardner are sureties thereon.
1. Appealable Order: Supersedeas. An order granting a writ of assistance in a foreclosure suit, after decree, sale, confirmation thereof and the execution of a sheriff’s deed, directing the sheriff to put the purchaser in possession of the premises, is a final order and is appealable; but is not such an order, within' the meaning of the third subdivision of section 677 of the code, as may be superseded by giving the waste bond therein provided for.
2. Discretion of Court. The court making such an order may, in his discretion, allow it to be superseded upon condition that the appellant give a bond for the payment of a reasonable rent for the use and occupation of the premises during the pendency of his appeal.
Ames and Letton, CC., concur.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause-remanded, with directions to render a judgment on the amount found, and certify therein that Escritt is principal on the bond, and Randall and Gardner are sureties thereon.
Judgment accordingly.