McMurtry v. Tuttle & Doolittle

13 Neb. 232 | Neb. | 1882

Maxwell, J.

On the twenty-ninth day of July, 1882, the sheriff of Lancaster county sold, upon execution, lot 12 in S. W. Little’s addition to Lincoln, to J. H. McMurtry, for the sum of $850. The plaintiffs in execution thereupon filed a motion to confirm the sale, and caused a notice of the same to be served upon the University Boarding Hall Association by “leaving’ a true and correct copy of the same with Austin Humphrey, treasurer of the defendant corporation, the president and secretary of the same both being absent from said county and state.” The purchaser resisted the confirmation upon two grounds, viz., that the service of process was defective, and that the court had no authority in vacation to confirm a- sale upon execution. The court overruled the objections, and confirmed the sale. The purchaser brings the cause into this court by petition in error.

Sec. 73 of the code provides that a summons against a corporation may be served upon the president, manager, chairman of the board of directors or trustees, or other chief officer; or if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent; or if none of the aforesaid officers can .be found, by a copy left at the .office, or last usual place of business of such corporation.

The notice in this case was properly served on the treasurer of the corporation, the, president and secretary being absent, and the statement of such absence in the return is sufficient. The first assignment of error was therefore properly overruled.

Sec. 498 of the code provides that if the court, upon the return of any writ of execution or order of sale, for the satisfaction of which any lands and tenements have been sold, shall, after having carefully examined the proceedings of the officer, be satisfied that the sale has in all respects been made in conformity to the provisions of this title, the court shall direct the clerk to make an entry on the journal that the court is satisfied of the legality of such sale, and an order that the officer make to the purchaser a deed of such lands and tenements; and the officer on making such sale may retain' the purchase money in his hands until the court shall have examined his proceedings as aforesaid, when he shall pay the same to the person entitled thereto, agreeable to the order of the court. Provided, That the judge of any district court may confirm any such sale at any time after such officer has made his return, on motion and ten days notice to the adverse party or his attorney of record, if made in vacation. When any sale is confirmed in vacation, the judge confirming the same shall cause his order to be entered on the journal by the clerk.

Sec. 23, art. VI of the constitution provides that: “The several judges of the courts of record shall have such jurisdiction at chambers as may be provided by law.” The legislature therefore had authority to confer jurisdiction upon the judges of the district courts to confirm in vacation sales of real estate made upon execution. The order, though made in vacation, must be entered on the journals of the court and become a part of its records, and has the same effect as though made in open court. There is 'no error in the record, and the judgment is affirmed.

Judgment affirmed.