Moore v. Boyer, 52 Neb. 446

Moore v. Boyer

52 Neb. 446 | Neb. | 1897

Ryan, C.

There was a decree of foreclosure in this case in the district court of Dawes county, followed in due time by a request for stay. Before the expiration of the period of stay fixed by statute the full amount of the judgment, interest, and costs were paid to the clerk of said district court. The payment noted was never credited on the judgment of foreclosure, but the clerk absconded without having paid the amount received for plaintiff. When the *447period of stay expired tbe order of sale was placed in the hands of the sheriff, by whom the lands described in the decree were advertised and sold to the plaintiff. Confirmation was resisted because the sale had been made to plaintiff on a judgment which at the date of the sale had been fully satisfied. The district court refused to confirm the sheriffs sale and this error proceeding is prosecuted to reverse the order of refusal.

In McDonald v. Atkins, 13 Neb., 568, it was held that the receipt of money by a clerk of a court of record upon a judgment in his. office is. an official act, and that the failure to faithfully account for such money so received by him is breach of his bond for which his sureties thereon are liable. This being true it necessarily follows that the payment to the clerk in this case operated to discharge the judgment on which the money was paid, even though the payment was made to him in a bank wbitker he had gone to receive it. The order of the district court denying confirmation is therefore

Affirmed.