53 Neb. 619 | Neb. | 1898
By his petition in error Charles Best questions, in this court, the correctness of the order of the district court of
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,
Affirmed.
