Best v. Zutavern, 53 Neb. 619

53 Neb. 619 | Neb. | 1898

Ryan, C.

By his petition in error Charles Best questions, in this court, the correctness of the order of the district court of Johnson county whereby were overruled his two objections to the confirmation of a sale of certain of his real property. These objections were not filed until after the sale had been made and returned for confirmation.

The first objection urged no fraud, but merely an alleged irregularity in the appraisement and was properly overruled. (Vought v. Foxworthy, 38 Neb. 214; Burkett v. Clark, 46 Neb. 466; Overall v. McShane, 49 Neb. 64; Kearney Land & Investment Co. v. Aspinwall, 45 Neb. 601; McMurtry v. Columbia Nat. Bank, 53 Neb. 21; Ecklund v. Willis, 44 Neb. 129.)

The second objection, briefly stated, was that the property sold by the sheriff was the homestead of Charles Best, and, therefore, being exempt from sale on execution, a confirmation of such sale should have been denied. In Schribar v. Platt, 19 Neb. 625, among other questions, there Avas determined the effect of a confirmation of a sale on execution over the objections of the execution defendant that the property sold was his homestead and as such was exempt from sale on judicial process. With respect to the contention of the adverse party that the confirmation of the sale was conclusive in a collateral proceeding, Cobb, J., in the delivery of the opinion of this court, said: “The learned district court seemed to be of the opinion, and so found, that the question of title was involved in and settled by thé proceedings for the confirmation of the said execution sale. In that, I think, the court erred; and that the only thing settled or adjudicated in the proceedings and order of confirmation, so called, Ayas as to the proceedings of the sheriff and those acting under and with him in the levy, appraisement, advertising, making, and returning of said sale.” It is true this vieAv is hardly reconcilable with the reasoning in Berkley v. Lamb, 8 Neb. 392, but as it is the later and has been acquiesced in for several years it must prevail and Berkley v. Lamb, supra, to that extent must be deemed overruled. On principle the holding in Schribar v. Platt, supra, is evidently correct, for this court has held that, at chambers, a judge may confirm a judicial sale (B a'rice Paper Co. v. Beloit Iron Works, 46 Neb. 900; McMurtry v. Tuttle, 13 Neb. 232), and this is hardly consistent with the idea that at such a hearing there may be an adjudication of rights ordinarily determinable only by courts in the exercise of their jurisdiction as such. On principle the language above quoted from Schribar v. Platt, supra, finds direct support in the reasoning in Quigley v. McEvony, 41 Neb. 73. (See also Baumann v. Franse, 37 Neb. 807.)' The ruling of the district court, we therefore conclude, was right, and accordingly it is

Affirmed.