108 Neb. 544 | Neb. | 1922
On the 26th. day of April, 1921, an execution ivas issued by the clerk of the district court for Douglas county on a judgment theretofore entered by said court, in favor of plaintiff and against the defendant herein. The sheriff of said county levied said execution on real estate owned by defendant and proceeded to advertise same for sale. Before the day set for said sale, the defendant served on
Appellant’s brief contains no specific assignment of errors, as required by rule 12 (94 Neb. NI) of this court, but states that this is an appeal from orders of the district court in confirming a sheriff’s sale of real estate and awarding a writ of assistance. From this and other statements in said brief it appears to be appellant’s contention that the trial court erred in making said orders, and we shall consider the case as if it were duly assigned in the brief that the action of the court in making such orders was erroneous.
Under the Nebraska statute providing for the confirmation of a sale made on execution, the only matter settled and adjudicated in the proceedings and order of confirmation is as to the proceedings of the sheriff and those acting under and with him in the levy, appraisement, advertising, making and return of said sale. Schribar v. Platt, 19 Neb. 625.
In Best v. Zutavern, 53 Neb. 619, defendant’s objection to the confirmation of a sale on execution on the ground that the. property levied on was his homestead was overruled and the sale confirmed. In affirming that case this court said: “The homestead right of exemption of real property under the laws of this state is not a proper subject for consideration upon proceedings for the confirmation of a sale of the alleged homestead on execution.” The fact that the homestead claimant filed objection to and contested the confirmation on the ground that said premises were his homestead and the court found against him on
The cases in which the foregoing principles and rules are announced have never been overruled or criticised, so far as we have been able to discover. On the contrary, the Schribar and Zutmern cases, supra, are cited with approval in 2 Freeman, Executions (3d ed.) sec. 311, wherein the author says: “We think the better opinion is that the right of exemption, where claimed, should be left for determination in some subsequent action to recover the property sold, or to otherwise determine its title, and, hence, that the confirmation of the sale of real property does not estop its owner from contending, in a subsequent action, that it constituted a homestead, and was, therefore, not subject to execution sale.”
The only ground of objection to the confirmation of the sale in the case at bar is that said premises are the homestead of defendant, of which claim the defendant notified the sheriff before' the sale. Under the foregoing rules this objection was not a valid one, as it raised an issue which could not properly be adjudicated in that proceeding, and the determination of which therein would not be binding upon either party, nor a bar to or in a subsequent action wherein such issue is properly raised.
Defendant attempts to differentiate the foregoing cases from the one at bar by the fact that in the former the statutory notice of the claim of homestead was not given the sheriff before the sale. He argues that the giving of such
The statutes of some states prescribed the method which must be pursued to determine a contested claim of homestead right in property levied upon. The Alabama Statutes of 1907, vol. 2, sec. 4173, provide that, when the claim of
If, in such a proper action, it shall be established that defendant, at the time of the levying of the execution in question, had a valid right of homestead in the premises levied upon, then said sale, the confirmation thereof, and the order awarding a writ of assistance are all void and of no force or effect. On the other hand, if it shall be determined in such an action that defendant’s claim of homestead in said premises is invalid, and that he had no homestead right therein, then all of said proceedings and or
We find no reversible error in the record, and the orders of the district court appealed from are therefore
Affirmed.