Jackson, 0.
In July, 1901, Charles S. Joslin and Suviah Joslin, as trustees under the will of John J. Joslin, deceased, procured the appointment of a receiver in an action to foreclose a mortgage, wherein they were the plaintiffs and Dora E. Williams et al. were defendants.. Upon appeal to the supreme court the order appointing the receiver was vacated and the petition for the appointment dismissed. Joslin v. Williams, 3 Neb. (Unof.) 194. In that proceeding the Fidelity and Deposit Company of Maryland was surety on the bond of the applicants for the appointment. The receiver made report to the district court showing the collection of rents amounting to $257.60, and disbursements to the amount of $143.41, including his fees, and the remainder, by direction of the court, was paid over to the clerk subject to the order of Dora E. Williams, and that fund still remains in the custody of the court; and thereupon Dora E. Williams brought suit against the Joslins and their surety on the bond for [596]*596damages because of tbe wrongful appointment of tbe receiver, and recovered judgment, from wbicb error is prosecuted on bebalf of tbe Joslins and tbeir surety. In tbe discussion of tbe case tbe parties will hereafter be designated as they were designated in tbe court below.
Tbe principal questions presented for determination in tbis court may be summarized, first, as to tbe effect of tbe order approving tbe report of tbe receiver and directing tbe disbursement of funds upon plaintiff’s claim for damages by reason of tbe wrongful appointment; and, second, as to tbe measure of damages. It is urged on bebalf of tbe defendants that tbe order confirming the report of thé receiver and directing the disbursement of funds in his hands amounts to an adjudication of tbe rights of the plaintiff. This contention cannot be sustained, except upon tbe theory that tbe plaintiff was compelled to litigate in that action her right to tbe damages involved in tbis action; and it would seem that a bare statement of tbe proposition ought to be sufficient to dispose of that question. Tbe accounts of the receiver are not involved, nor was there involved in the accounts of tbe receiver any question of damages which might arise by reason of bis wrongful appointment.. Tbe appointment of a receiver adjusts and determines tbe right of no party to tbe proceedings, and grants no final relief, directly or indirectly. Vila v. Grand Island E. L., I. & C. S. Co., 68 Neb. 233. Tbe discharge of tbe receiver and tbe settlement of bis accounts was a necessary result of the appointment, and was, of course, conclusive as between tbe parties litigant and tbe receiver himself, but did not have tbe effect of determining the question of damages as between tbe litigants, any more than the dissolution of an injunction or tbe discharge of an attachment would determine tbe question of damages in actions where relief by injunction or attachment is sought.
By section 269 of the code, it is provided that every order appointing a receiver shall require tbe applicant to give a good and sufficient bond, conditioned to pay all [597]*597damages which the other parties to the suit, or any of them, may sustain by reason of the appointment of a receiver, -in case it shall he finally decided that the order ought not to have been granted. This provision is similar in effect to those provisions of our code requiring bonds to be given in attachment proceedings and upon the procuring of temporary orders of injunction, and, while the liability on the bond follows as a result of the final judgment in such cases, the extent of such liability and the measure of damages remains to be determined in an independent action on the bond., That is equally true in cases of a bond given by the applicant for the appointment of a receiver. The case is not one where the appointment of a receiver was acquiesced in or agreed upon by the parties, or where it was finally determined that the appointment was justified. The appointment in this case was resisted at the outset, and the right to such appointment was contested at every stage of the proceedings; and, while the rights and liabilities of the receiver were determined upon the settlement of his account, the liabilities of the parties to each other, growing out of the appointment, were in no sense determined or adjudicated. Authorities are cited to the effect that the plaintiff should not be held responsible for losses which result from the wrongful acts or negligence of the receiver. They are not applicable, however, to this case, where the wrong-does not arise out of the misconduct of the receiver. The damages here result from the wrongful appointment procured at the instance of the defendants Joslin.,
At the trial the plaintiff Avas permitted to prove, over the objections of the defendants, the rental value of the premises during the period when the receiver collected the rents and profits, and the value of the services of counsel employed in her behalf in procuring the vacation of the order appointing the receiver. It is urge'd that the rental value of the premises was not a proper measure of damages under the allegations of the petition, and that attorney’s fees in procuring the vacation of the order [598]*598should not be considered as an element of damages. The petition contains a recital of the appointment of the receiver, a copy of the bond, the appeal to the supreme court • and the order there made, the mandate of the supreme court requiring the district court to carry into effect the judgment of the supreme court, that the plaintiff was compelled to and did employ an attorney to prosecute the appeal to the supreme court, and the obligation to pay for the services so performed, together with the personal expenses of her attorney, which she was required to pay. It recites her title to the property and that she was entitled to the possession and the rents and profits; that the receiver entered upon the discharge of his duties, demanded and received the rents during the entire period of his receivership, and that he used and appropriated the’ rents and income arising therefrom; that the fair rental value of the premises was $24 a month and that the receiver collected the sum of $860 as such rents and profits. The contention that the rental value of the premises during the period of the receivership was not a proper measure of damages doubtless arises from the construction placed upon the allegation of the petition by the defendants.. We have no hesitancy in saying that the rental value of the premises was a proper measure of damages, and that the allegation in the petition showing the amount of rents collected by the receiver is entirely immaterial. What the result would have been had the plaintiff accepted the remainder of the rents and profits paid into court by the receiver, or had the plaintiff procured or participated in the proceedings resulting in the statement of the receiver’s account, it is unnecessary to determine; nor is it important to the inquiry that she might still apply to the clerk of the district court and receive the remainder from his hands. It is sufficient to state that she did not procure the accounting by the receiver and has not received any part of the funds collected by him; nor is it important that the defendants have permitted that fund to remain in the, custody of the clerk. '
[599]*599.. There is no statute expressly authorizing the allowance of attorney’s fees as an item of damages where it is finally determined that a receiver should not have been appointed. That is true, however, of every other element of damages.
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Jackson, 0.
In July, 1901, Charles S. Joslin and Suviah Joslin, as trustees under the will of John J. Joslin, deceased, procured the appointment of a receiver in an action to foreclose a mortgage, wherein they were the plaintiffs and Dora E. Williams et al. were defendants.. Upon appeal to the supreme court the order appointing the receiver was vacated and the petition for the appointment dismissed. Joslin v. Williams, 3 Neb. (Unof.) 194. In that proceeding the Fidelity and Deposit Company of Maryland was surety on the bond of the applicants for the appointment. The receiver made report to the district court showing the collection of rents amounting to $257.60, and disbursements to the amount of $143.41, including his fees, and the remainder, by direction of the court, was paid over to the clerk subject to the order of Dora E. Williams, and that fund still remains in the custody of the court; and thereupon Dora E. Williams brought suit against the Joslins and their surety on the bond for [596]*596damages because of tbe wrongful appointment of tbe receiver, and recovered judgment, from wbicb error is prosecuted on bebalf of tbe Joslins and tbeir surety. In tbe discussion of tbe case tbe parties will hereafter be designated as they were designated in tbe court below.
Tbe principal questions presented for determination in tbis court may be summarized, first, as to tbe effect of tbe order approving tbe report of tbe receiver and directing tbe disbursement of funds upon plaintiff’s claim for damages by reason of tbe wrongful appointment; and, second, as to tbe measure of damages. It is urged on bebalf of tbe defendants that tbe order confirming the report of thé receiver and directing the disbursement of funds in his hands amounts to an adjudication of tbe rights of the plaintiff. This contention cannot be sustained, except upon tbe theory that tbe plaintiff was compelled to litigate in that action her right to tbe damages involved in tbis action; and it would seem that a bare statement of tbe proposition ought to be sufficient to dispose of that question. Tbe accounts of the receiver are not involved, nor was there involved in the accounts of tbe receiver any question of damages which might arise by reason of bis wrongful appointment.. Tbe appointment of a receiver adjusts and determines tbe right of no party to tbe proceedings, and grants no final relief, directly or indirectly. Vila v. Grand Island E. L., I. & C. S. Co., 68 Neb. 233. Tbe discharge of tbe receiver and tbe settlement of bis accounts was a necessary result of the appointment, and was, of course, conclusive as between tbe parties litigant and tbe receiver himself, but did not have tbe effect of determining the question of damages as between tbe litigants, any more than the dissolution of an injunction or tbe discharge of an attachment would determine tbe question of damages in actions where relief by injunction or attachment is sought.
By section 269 of the code, it is provided that every order appointing a receiver shall require tbe applicant to give a good and sufficient bond, conditioned to pay all [597]*597damages which the other parties to the suit, or any of them, may sustain by reason of the appointment of a receiver, -in case it shall he finally decided that the order ought not to have been granted. This provision is similar in effect to those provisions of our code requiring bonds to be given in attachment proceedings and upon the procuring of temporary orders of injunction, and, while the liability on the bond follows as a result of the final judgment in such cases, the extent of such liability and the measure of damages remains to be determined in an independent action on the bond., That is equally true in cases of a bond given by the applicant for the appointment of a receiver. The case is not one where the appointment of a receiver was acquiesced in or agreed upon by the parties, or where it was finally determined that the appointment was justified. The appointment in this case was resisted at the outset, and the right to such appointment was contested at every stage of the proceedings; and, while the rights and liabilities of the receiver were determined upon the settlement of his account, the liabilities of the parties to each other, growing out of the appointment, were in no sense determined or adjudicated. Authorities are cited to the effect that the plaintiff should not be held responsible for losses which result from the wrongful acts or negligence of the receiver. They are not applicable, however, to this case, where the wrong-does not arise out of the misconduct of the receiver. The damages here result from the wrongful appointment procured at the instance of the defendants Joslin.,
At the trial the plaintiff Avas permitted to prove, over the objections of the defendants, the rental value of the premises during the period when the receiver collected the rents and profits, and the value of the services of counsel employed in her behalf in procuring the vacation of the order appointing the receiver. It is urge'd that the rental value of the premises was not a proper measure of damages under the allegations of the petition, and that attorney’s fees in procuring the vacation of the order [598]*598should not be considered as an element of damages. The petition contains a recital of the appointment of the receiver, a copy of the bond, the appeal to the supreme court • and the order there made, the mandate of the supreme court requiring the district court to carry into effect the judgment of the supreme court, that the plaintiff was compelled to and did employ an attorney to prosecute the appeal to the supreme court, and the obligation to pay for the services so performed, together with the personal expenses of her attorney, which she was required to pay. It recites her title to the property and that she was entitled to the possession and the rents and profits; that the receiver entered upon the discharge of his duties, demanded and received the rents during the entire period of his receivership, and that he used and appropriated the’ rents and income arising therefrom; that the fair rental value of the premises was $24 a month and that the receiver collected the sum of $860 as such rents and profits. The contention that the rental value of the premises during the period of the receivership was not a proper measure of damages doubtless arises from the construction placed upon the allegation of the petition by the defendants.. We have no hesitancy in saying that the rental value of the premises was a proper measure of damages, and that the allegation in the petition showing the amount of rents collected by the receiver is entirely immaterial. What the result would have been had the plaintiff accepted the remainder of the rents and profits paid into court by the receiver, or had the plaintiff procured or participated in the proceedings resulting in the statement of the receiver’s account, it is unnecessary to determine; nor is it important to the inquiry that she might still apply to the clerk of the district court and receive the remainder from his hands. It is sufficient to state that she did not procure the accounting by the receiver and has not received any part of the funds collected by him; nor is it important that the defendants have permitted that fund to remain in the, custody of the clerk. '
[599]*599.. There is no statute expressly authorizing the allowance of attorney’s fees as an item of damages where it is finally determined that a receiver should not have been appointed. That is true, however, of every other element of damages. The statute does not undertake to define the damages which the applicant for the appointment of a receiver may be called upon to pay in the event that the receiver is improperly appointed. That is equally true in cases of the allowance of a temporary injunction and the attachment of property under the provisions of the code. It is now, however, the settled rule of. this state that attorney’s fees are . properly allowable in such cases as an element of damages, and there seems to be no good reason why they should not be allowed in case of the wrongful appointment of a receiver. But it is said that this rule is a hardship on the defendants, as illustrated by the fact that the item of attorney’s fees charged exceeds the entire amount of the rents and profits.. Any other rule, however, would work a hardship on the plaintiff, whose property was sequestered and who was obliged to and did employ counsel in order that the wrong might be righted, and it should be the policy of the law, where hardship must be suffered by some one, to relieve the litigant who is free from wrong and to cast the onus upon the one out of whose wrongful acts the hardship arises.
Furthermore, it is insisted that in the appellate proceedings from the order appointing the receiver counsel for plaintiff presented the case upon the theory that the property was the homestead of the plaintiff, whereas the appellate court finally put the decision upon the ground that the plaintiff’s right of possession was by reason of the provisions of section 17, ch. 36, Comp. St. 1901. That course of reasoning does not impress us with very much force. The fact remains that the plaintiff contended that the character of the property was such as to prohibit the appointment of a receiver. That contention was sustained in the appellate court, although upon a ground different from the one urged. That would not militate, however, [600]*600against the plaintiff’s demand for damages; the result was the same, notwithstanding the erroneous reason. In Haverly v. Elliott, 39 Neb. 201, an action on a bond given in a case where the receiver was wrongfully appointed, it is said:
“The law of the state, and the bond given by Haverly and his sureties as well, provided that if it should be finally decided that this receiver was wrongfully appointed, then that Haverly would pay Mrs. Elliott all damages which she might sustain by reason of the appointing of such receiver. The word ‘all’ does not mean some, nor a part, but means the whole, the entire damage, every item of injury.”
The rule there stated is justified by the language of the statute, and, to say the least, is a common sense rule.
It is contended that the court erred in denying an offer on the part of the defendants to put in evidence the report of the receiver and the order of the district court thereon. In view of the conclusion already reached, however, we must hold that the objection to the introduction of this record was properly sustained.
In the answer of the defendants a counterclaim is set out for costs paid by the defendants in the foreclosure proceedings, which were adjudged against the plaintiff. It appears that upon the trial of the foreclosure proceedings on its merits the district court found for the defendants in that proceeding and dismissed the plaintiff’s petition. Upon appeal to the supreme court that decree was reversed at the cost of the appellee, amounting to $21. It was adjudged by the decree of foreclosure that, in default of the payment by the defendant of the amount found due on the mortgage, with interest and costs of suit (alleged to amount to $127.71, including the item of $21, costs in appellate court), the property should be sold as upon execution for the satisfaction thereof, and this, it is said, is a personal judgment against the plaintiff, which she has not satisfied, although the costs were paid out of the proceeds of the sale of the mortgaged property. No de[601]*601ficiency judgment, however, was or could he entered in the foreclosure proceedings, and, in our opinion, no execution could issue upon the judgment for costs, other than an order for the sale of the mortgaged premises.
In the instructions to the jury given by the court on its own motion, the court advised the jury as to the allegations of the petition and of certain admissions contained in the answer, but neglected to state that the answer contained a general denial. It is complained that the instruction is erroneous and prejudicial. That the instruction is open to criticism may he conceded. In vieAv, however, of the other instructions to the jury, we do not think that the failure to call the attention of the jury to the general denial was prejudicial. The court instructed the'jury that the burden of proof was on the plaintiff to establish the allegations of her petition by a preponderance of the evidence. This instruction was certainly as favorable to the defendants as the pleadings would justify, and necessarily had the same effect as a statement from the court that the allegations of the petition were denied.. In instruction No. 3 the court said: “You are further instructed that the court did not permit evidence to be introduced in support of the cross-demand or other defense to said bond, alleged in the answer of said defendants, for the reason that, as a matter of law, said allegations in said answer are not a defense to this action upon this bond in controversy, and you will therefore not consider the same.” This instruction is also open to criticism because of the use of the words “or other defense,” but, in view of the state of the record, cannot be said to have been prejudicial. All of the rulings of the court in the matter of the introduction of evidence, to which our attention has been called, were proper; and all offers of evidence on behalf of the defendants which were excluded on objection Avere properly excluded, and no prejudice to the defendants could possibly arise out of the instructions complained of..
In defining the elements of damage for which the plaintiff was entitled to recover, they were stated thus by the [602]*602court: “First. Of the injury to her possession during the time she was deprived of the occupation of said premises. Second. The. actual and necessary expenses which she incurred in the employment of an attorney, if any, to resist said receivership, and of the natural and necessary expenses of said attorney in going to Lincoln to attend the supreme court in the matter of resisting said appointment of a receiver, and of the costs of court which she expended in said resistance to the appointment of said receiver.” It is said that this instruction is erroneous, in that it submits to the jury the question as to the value of the services rendered by plaintiff’s attorney to resist the receivership, whereas the allegations of the petition relative to the services of an attorney in the district court were stricken out on motion. The court, however, by another instruction, told the jury not to consider any services rendered by the attorney for plaintiff in the district court. In instruction No. 6 the court directed the jury to return a verdict for the plaintiff and assess her damages at such sum as they might find from the evidence, under the instructions, she was entitled to recover, not exceeding the penalty in the bond. This instruction was entirely proper.. Under the pleadings and evidence no verdict could stand except one favorable to the plaintiff. All other objections to the instructions are disposed of in the previous discussion of the case.
1. Homestead: Foreclosure: Receivership, Cost op. The value of a mortgagor’s homestead interest and right of possession of the mortgaged premises pending foreclosure proceedings cannot be diminished by tbe costs of a receivership, the fees of the receiver, or the money not necessarily paid out by him for repairs on the premises, where it has been finally decided that the receiver ought not to have been appointed.
[602]*602We find no reversible error in the record, and recommend that the judgment of the district court be affirmed.
ALBERT, 0., concurs.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
The following opinion on rehearing was filed May 24, 1907. Judgment of affirmance adhered to:
2. Receiver’s Bond: Actions: Cdoss-Demand. In an action on the bond given to obtain the appointment of the receiver, in such a case, defendants cannot by way of cross-demand recover the costs of the foreclosure proceeding for which the owner of the homestead interest was not personally liable.
Barnes, J.
This is an action on a bond given by the plaintiffs in a foreclosure suit to obtain an order appointing a receiver to take possession of the mortgaged premises, collect the rents and profits thereof pending the litigation, and apply them to the satisfaction of the mortgage debt. The plaintiff herein had judgment in the court below, which was affirmed by our former decision, ante, p. 594. The case has been reargued to the court on a rehearing, and the question now is, shall we adhere to our former judgment?
It appears that the bond in question was given under the provisions of section 269 of the code, and was conditioned : That the plaintiffs in that suit should pay to the defendant, plaintiff herein, all damages which she might sustain by reason of the appointment of the receiver, if it should be finally decided that the order ought not to have been granted. By the judgment of this court it was finally decided that the order should not have been made, and that branch of the foreclosure suit was dismissed and the pro: ceeding wholly terminated. Joslin v. Williams, 3 Neb. (Unof.) 194. It further appears that the plaintiff herein was the surviving mortgagor of the house and lot, the subject of the foreclosure suit, which was her homestead, and was therefore entitled to the undisturbed possession, use and enjoyment thereof until after sale and confirmation finder decree of foreclosure; that the receiver took charge of the property over the plaintiff’s objection, deprived her [604]*604of the use and possession thereof, collected the rents and profits, which she was clearly entitled to receive, and which, but for such wrongful appointment, she would have received for her own use and benefit. That the plaintiff can maintain this action seems clear; so the only question for our determination is the proper measure of her damages.
It is contended by the defendants that the. plain tiff is not entitled to recover the rental value of the premises in question during the time she was wrongfully deprived of her right to the possession thereof, for the reason that from the nature and character of the receivership proceedings the possession of the receiver was her possession; that he was her receiver, and not the representative of the plaintiffs in the foreclosure suit. In support of this contention counsel quote from Wiswall v. Sampson, 14 How. (U. S:) *52, *65, as follows:
“The effect of the appointment is not to oust any party of his right to the possession of the property, but merely to retain it for the benefit of the party who may ultimately appear to be entitled to it; and when the party entitled to the estate has been ascertained, the receiver will be considered his receiver.”
An examination of the case from which the above quotation is taken shows that it was an action in ejectment. The plaintiff .claimed title through an execution sale of the real estate in question based on a judgment at law; while the defendant claimed title through a sale made by a master in chancery in an action to set aside a conveyance of the real estate as fraudulent, and subject it to the payment of a judgment upon which an execution had been issued and returned unsatisfied. It appears that in the equity proceeding a receiver was appointed to take charge of the property after the rendition of a decree adjudging the conveyance fraudulent as to creditors and ordering that the property he subjected to the payment of the judgment or judgments in question. There was no contention that the -receiver was not rightfully appointed, and the [605]*605excerpt relied on is only a part of the reasoning of the court to uphold its judgment. The thing actually decided in that case was that, where real estate is in the custody of a receiver appointed by a court of chancery, a sale of the property under execution issued by virtue of a judgment at law is illegal and void. And the proper proceeding to he pursued by any person claiming title to such property either by mortgage, judgment or otherwise was there pointed out. So it may he said that the decision does not support the defendants’ contention.
Again, it would seem clear that before a receiver could be said to be the receiver of any party, especially of a party opposing his appointment at all stages of the proceedings, he must have been rightfully appointed. In the case at bar the plaintiff never' acquiesced in the appointment of the receiver, but on the other hand protested against such appointment, and took the proper steps to reverse the order of the district court in that behalf. She was successful; and the rule invoked that the receiver who was wrongfully appointed must he accepted by her as her receiver is so absurd we cannot give it our approval. It seems to us that this case is ruled by Haverly v. Elliott, 39 Neb. 201. There the plaintiff owned and conducted a confectionery store, and manufactured and sold ice cream and soda water. She also owned a stock of confections and a miscellaneous lot of furniture and fixtures used in her business. One Haverly held a lien against this property and brought suit in equity to foreclose it. He obtained the appointment of a receiver, who took possession of the plaintiff’s property and place of business, held them for some days, and then sold the property to pay the Haverly lien. It having been finally decided that the order appointing the receiver ought not to have been granted, the plaintiff sued Haverly and his sureties on the bond given to obtain the appointment of such receiver. We held that the value of her interest in the property sold by the receiver at the time he took possession of the same, and the actual loss she sustained by the suspen[606]*606sion of her business during the time she was prevented from carrying it on, by reason of the possession held by the receiver of her property and place of business, was the correct measure of damages. In the case at bar the plaintiff was entitled to the possession of her home until after sale and confirmation upon a decree of foreclosure. The defendants Joslin wrongfully obtained the appointment of a receiver and thus deprived her of her right of possession. The value of her possession was the fair rental value of the premises during the time they were held by the receiver.. She was entitled to such rental value, and it could not lawfully k,e diminished by the costs and expenses of the receivership which, including his fees, he deducted from the' amount of rent collected by him.
Again, a party could not lawfully be required in such a case as this to expend any of the money which she was entitled to receive as the rental value of the premises in improvements or repairs thereon of any kind. Of course, it might not be for her interest to make repairs on the property. Unless the debt was paid she was only entitled to the use and enjoyment of it until sale and confirmation, after which she would be required to surrender all her rights to the purchaser. She was not required to improve the property or to repair the same for the benefit of such purchaser; and this is especially so because of the fact that, whether the premises brought much or little at the sale, no deficiency judgment could have been rendered against her. So the amount of the receiver’s fees and the costs of that proceeding, together with the money expended for repairs out of the rentals of the property, were wrongfully taken from her and converted to another’s use. It is insisted, however, by counsel for the defendants that the approval of the account of the receiver, and his discharge by the order of the district court, was binding on the plaintiff to the extent, at least, of compelling her to receive the small remainder which he paid into court in full compensation for her interest in the mortgaged premises' while she was wrongfully [607]*607deprived of the use and benefit thereof. To so hold would ■ amount to a reversal of our judgment in her favor declaring that the receiver was wrongfully appointed. When the order relied on was made there was no receiver ■in the foreclosure proceeding.. Long before that time he had been discharged, and the judgment appointing him had been reversed and set aside. So it seems clear that the plaintiff was not bound by that order, but has the right to proceed against the defendants on the bond given by them to secure the appointment of the receiver, and •recover all the damages that she has thereby sustained.
Lastly, the defendants contend that they were entitled to recover' of the plaintiff the costs in the foreclosure proceeding, or a part of them, on their cross-demand in this case. It is urged as a reason for the contentiomthat a large part of the costs in that proceeding was advanced by them, and that the court erred in denying them the right to recover the costs so advanced. This contention cannot be sustained. The decree of the district court in the foreclosure case provided that out of the proceeds of the sale of the mortgaged premises the costs should be first paid, and that the remainder of such proceeds, should be applied to the payment of the amount found due the plaintiffs therein. So the plaintiff herein was not made personally liable for any part of the costs, and no personal judgment could have been rightfully rendered against her therefor. As we understand it, it is not now contended that she can be compelled to pay any part of,, the costs of the foreclosure proceedings by execution or otherwise, and we fail to understand how the value of her right of possession of the premises in question during the pendency of the foreclosure proceedings can be diminished by requiring her to pay any part of the costs of that action.. We are ashed, however, in case we adhere to our former decision, to make some order with reference to the disposition of the money deposited in court by the receiver, so that the plaintiff may not have double rent from the property in question. It would seem that this [608]*608is a matter for tlie consideration of the district court; that if the defendants desire to have the money there deposited paid to the plaintiff they should make an application to that court for an order on the clerk to turn over the fund to the plaintiff as a payment pro tanto upon her judgment. Or, if they see fit to do so, they may obtain an order permitting them to withdraw the money for their own use and benefit, and in that event execution should be awarded to the plaintiff for the full amount of her judgment herein.
For the foregoing reasons, our former judgment is adhered to.