
    State of Nebraska, ex rel. German Savings Bank, v. Jacob Fawcett, Judge.
    Filed June 20, 1900.
    No. 11,289.
    1. Receiver: Confirmation of Sale: Supersedeas. An order confirming tlie sale oí real estate by the receiver of an insolvent bank is appealable and may be superseded by the bank.
    3. -: Mandamus. Mandamus will lie in a proper case to compel fixing.the amount oí the penalty of a supersedeas bond to be given on appeal from an order confirming the sale of real estate.
    Original proceeding in mandamus to compel tlie respondent, a district judge, to fix the amount of the penalty in a supersedeas bond on an appeal from confirmation of a sale of realty.
    
      Writ allowed.
    
    
      Consta,niine J. Smyth, Attorney General, and Joel W. West, for relator.
    
      Ralph W. Breolcenridge, contra.
    
   Nor val, O. J.

Several years since, on application of the attorney general, a receiver was appointed for the German Savings Bank. The receiver qualified and entered upon the discharge of the duties of his trust. The district court of Douglas county, having jurisdiction of the proceedings, ordered the receiver to sell the remaining assets in his hands. In pursuance of this order the receiver on February 15, 1900, sold the assets, including several tracts of land, and made report of his sale. The court entered a rule requiring that cause be shown by a day named why the sale should not be confirmed, and directing that notice of such order be given the bank, which was done by service upon Joel W. West, the attorney of record of the bank, and who had represented it from the time the receiver was appointed, Mr. West, for and in behalf of the German Savings Bank, and in its name, filed objecttions to the receiver’s sale, which were not sustained by the court, and the sale was approved and confirmed. Thereupon Mr. West, in the name of the bank, and as its counsel, asked the district court to fix the amount of the penalty of the supersedeas bond, which request was denied and this application followed for a peremptory writ of mandamus to compel the respondent as the presiding judge to designate the penalty of the bond.

There is no room to doubt that the order confirming the sale of real estate by the receiver is not only appeal-able, but may be superseded, as well, by the bank, and it is for the trial court to fix the amount of the penalty of the supersedeas bond. Kountze v. Erch, 45 Nebr., 288; State v. German Savings Bank, 50 Nebr., 734; State v. Fawcett, 58 Nebr., 371. Mandamus will lie to compel the fixing of the amount of such bond. State v. Holmes, 59 Nebr., 503. But before the writ will issue it must appear that the respondent was requested by the relator to fix the penalty of the bond, and the application has been denied. As already stated, Joel W. West, for and on behalf of the bank, demanded of the respondent that he designate the penalty of the supersedeas bond. This much is conceded. The contention of the respondent is that Mr. West was counsel for some of the stockholders of the bank, and for whom, and not in good faith for the bank, he requested the fixing of the supersedeas bond. That issue was tendered to the district court when the application for the supersedeas bond was made, which issue was determined against the relator, and'it is argued that this is final and conclusive. The question is not free from difficulties. Doubtless, the district court had a right, upon the proper issue tendered, to determine whether an attorney, who appears in a cause before it, has the authority so to do; and the decision on the question, when not appealed from, ordinarily becomes res judicata. We are unwilling to apply the rule here, since the act of the attorney was to secure an appeal and supersedeas, and in such a case the decision of the district court as to his right to appear for the bank and whether he in good faith represented it is not conclusive in the proceeding. It is for this court to determine for itself whether the relator demanded of the respondent that he fix the amount of the supersedeas bond. The bank, being a corporation, could not personally appear before the district court, but could be represented by its officers or by counsel duly empowered. The evidence shows that Mr. West was employed by the corporation as its attorney at the time the receiver was appointed, and had authority to represent the bank in any and all steps taken' in the cause, and he has, at the various stages of the proceeding, represented it before the courts. Thrice before this he has appeared for the bank in this court in matters connected with the receivership, with his authority to do so unchallenged. His general employment authorized him to take the necessary steps to appeal from the order of confirmation and to have the amount of supersedeas bond fixed. Moreover, his right to represent the bank was fully recognized by the service upon him of the rule to show cause. It may be that others than the bank may be greatly benefited by the appeal and the giving of the supersedeas bond, but that is no reason why the writ should be refused. It is true it is time the affairs of the bank were closed up, and this court is willing to lend its aid in that direction, when in its power to do so. The respondent should fix the amount of the supersedeas bond. Judgment will be entered accordingly.

Writ allowed.  