Devries v. Squire

Hakrison, C. J. Id this, an action of foreclosure of a real estate mortgage, it was pleaded in the petition that the plaintiff in error, subsequent to the execution by the then owners of the mortgage in suit, purchased the mortgaged property, and that in the instrument of conveyance to him there was a clause in reference to the premises in which it was stated that the grantee assumed and agreed to pay the mortgage debt by which the plaintiff in error became obligated and bound. A sale of the mortgaged property, the application of the proceeds to the payment of the debt, and judgment against certain parties, inclusive of the plaintiff in error, for any deficiency was prayed. The plaintiff in error answered and denied that he had assumed and agreed to pay the debt. By the decree rendered in -the cause the amount of the debt was stated, and also that for any deficiency designated parties, of whom was the plaintiff in error, should be liable. After sale and confirmation thereof a motion was made for a deficiency judgment against the plaintiff in error, which was resisted in his behalf. Evidence was taken on the subject of his liability for the payment of the amount of deficiency, and judgment was rendered against him therefor, of which he seeks a reversal in the present error proceedings. It is asserted for the plaintiff in error that the jurisdiction of the district court to render a deficiency judgment in the action was purely statutory, and by statute the adjudication of a recovery of a deficiency could not be until after the “coming in of the report of the sale.” (See Compiled Statutes 1895, sec. 847, Code of Civil Procedure.) This is correct, but in this case there was no allowance of a recovery of the deficiency until after the report and confirmation of the sale. It is true the court did fix, by its decree, who should be liable for any deficiency, but it did not then render any judgment for the amount thereof against them, Against whom the lia [440] bility might be rendered was of tbe issues in tbe cause, and, as was entirely proper, was determined and became of tbe settled matter of tbe litigation. (Stover v. Tompkins, 34 Neb. 465; Kloke v. Gardels, 52 Neb. 117.) Tbe question of tbe liability of tbe plaintiff in error for tbe deficiency, as we have before stated, was- beard after tbe confirmjatijon of tbe sale, and it is asserted for tbe plaintiff in error that the finding and judgment of the trial court, to the effect that the plaintiff in error was liable for tbe deficiency, was not sustained by, or was contrary to, tbe evidence. If it be conceded that a trial of tbe question was, at tbe time it occurred, proper herein, which we need not and do not decide, tbe plaintiff in error cannot be beard in this error proceeding, for tbe reason that he did not except to tbe order of tbe court by which tbe motion for a new trial was overruled. (Van Etten v. Medland, 53 Neb. 569, and citations therein.) It follows that tbe judgment of tbe trial court will be Affirmed.