52 Neb. 705 | Neb. | 1897
This is a proceeding in error to review an order confirming a foreclosure sale. The defendants, before the sale, filed a motion to vacate the appraisement, alleging, among other things, that certain persons had conspired together and with the appraisers to bring about an unduly low appraisement. An application was made for a hearing of this motion on oral evidence, to be adduced before the court or a referee to be appointed for that purpose. This motion was overruled and the action of the court in that behalf is the ground of the most important assignment of error. Since the argument of this case it has been held (Kountze v. Scott, 52 Neb., 460) that the taking of testimony orally in court on a motion to discharge an attachment is a matter resting within the discretion of the trial court, and not a matter of right of the parties. While section 236 of the Code has special reference to evidence on motions to discharge attachments, and, therefore, to a large extent governed the decision of that case, still the inquiry there was whether
It is assigned as error that the appraisers were sworn to appraise, not the interest of the owner of the equity, but that of another defendant who had previously conveyed the property. This was not called to the attention of the district court either in the motion to vacate the •appraisement or to set aside the sale, and» we therefore cannot here consider it.
Another objection made was that the sale was made by a deputy, and not by the sheriff himself. The deputy may act for his principal in such matters. (Nebraska Loan & Building Ass’n v. Marshall, 51 Neb., 534.)
It is said that one of the certificates of incumbrances was made by the county clerk, whereas in Buffalo county there is a register of deeds who should have made it. The certificate, itself appears to be by the register of deeds, and we can find no support in the record for this assignment, beyond the fact that in the printed form on which the appraisement was returned there appears a line for the insertion of liens shown by the county clerk’s certificate, and this line even is left blank in the return.
Objection is made because no certificate was obtained from the treasurer of the city of Kearney. We can find no proof that the land sold is within the city, but if that be true the omission to procure certificates and deduct liens is not a matter of which the defendants can complain. (La Flume v. Jones, 5 Neb., 257; Craig v. Stevenson, 15 Neb., 362; Smith v. Foxworthy, 39 Neb., 214.)
It is contended that there is a variance in the description of the land as between the decree and the notice of sale. This consists merely in the designation “north”
Next, it is said that the sheriff improperly undertook to apply a surplus remaining after the payment of plaintiff’s debt to the discharge of a certain judgment, without proof that such a judgment existed or that the person to whom payment was made was the owner thereof, and furthermore, that such judgment, if it existed, had become dormant. Assuming that these would be reasons for setting aside the sale if well founded in fact, they cannot be urged here, for the decree adjudged this judgment to be a valid lien in favor of the party to whom it was paid. This was an adjudication which could only be set aside by appellate procedure from the decree itself, or by proper proceedings in the district court to modify the decree.
Other questions are raised, but they were all determined adversely to the plaintiffs in error in a recent case between practically the same parties. (Nebraska Land, Stock-Growing & Investment Co. v. McKinley-Lanning Loan & Trust Co., 52 Neb., 410.) It is therefore unnecessary to restate them.
Affirmed.