Storz Brewing Co. v. Hansen

Nebraska Supreme Court

Storz Brewing Co. v. Hansen

152 N.W. 370, 98 Neb. 282, 1915 Neb. LEXIS 184

CourtNebraska Supreme Court

DecidedApril 16, 1915

DocketNo. 18958

StatusPublished

This text of 152 N.W. 370 (Storz Brewing Co. v. Hansen) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Storz Brewing Co. v. Hansen, 152 N.W. 370, 98 Neb. 282, 1915 Neb. LEXIS 184 (Neb. 1915).

Pincite

Opinion

Hamer, J.

The facts in this case are stated in the former opinion, Storz Brewing Co. v. Hansen, 89 Neb. 685. The judgment was reversed and the case remanded to the district court, so as to allow the plaintiff to make a proper application to apply the surplus proceeds of the sale upon the foreclosure decree and to try any issues raised upon such application. Issues were framed and the cause tried accordingly.

The court found generally for the plaintiff on the motion, that there was due upon the judgment at the time of the sale $576.60, together with costs amounting to $27.35, and that at the time of such sale the plaintiff was the owner of a judgment of foreclosure against the defendant in the sum of $1,886.53, which constituted a second lien upon the premises sold under the execution, and that no part of the said amount had been paid. It was also found that Carl F. Hansen was insolvent, and that the portion of the sum bid at the execution sale which was not consumed by the judgment and costs amounted to $657.35, and that this sum should be applied by the plaintiff upon its judgment and decree of foreclosure, the costs of the proceeding to be taxed against the defendant Carl F. Hansen.

The proceeding was of the nature of an equitable garnishment. The mortgage was a lien on all of Hansen’s interest in the property, including his homestead interest, and the surplus proceeds. Hansen is insolvent. He owes the brewing company more than $1,800. It would be grossly inequitable to allow him to retain the surplus arising from the sale.

The judgment of the district court is

Affirmed.

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Hamer, J.

The facts in this case are stated in the former opinion, Storz Brewing Co. v. Hansen, 89 Neb. 685. The judgment was reversed and the case remanded to the district court, so as to allow the plaintiff to make a proper application to apply the surplus proceeds of the sale upon the foreclosure decree and to try any issues raised upon such application. Issues were framed and the cause tried accordingly.

The court found generally for the plaintiff on the motion, that there was due upon the judgment at the time of the sale $576.60, together with costs amounting to $27.35, and that at the time of such sale the plaintiff was the owner of a judgment of foreclosure against the defendant in the sum of $1,886.53, which constituted a second lien upon the premises sold under the execution, and that no part of the said amount had been paid. It was also found that Carl F. Hansen was insolvent, and that the portion of the sum bid at the execution sale which was not consumed by the judgment and costs amounted to $657.35, and that this sum should be applied by the plaintiff upon its judgment and decree of foreclosure, the costs of the proceeding to be taxed against the defendant Carl F. Hansen.

The proceeding was of the nature of an equitable garnishment. The mortgage was a lien on all of Hansen’s interest in the property, including his homestead interest, and the surplus proceeds. Hansen is insolvent. He owes the brewing company more than $1,800. It would be grossly inequitable to allow him to retain the surplus arising from the sale.

The judgment of the district court is

Affirmed.

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Bluebook (online)

152 N.W. 370, 98 Neb. 282, 1915 Neb. LEXIS 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/storz-brewing-co-v-hansen-neb-1915.

Opinion

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