52 Neb. 410 | Neb. | 1897
This is a proceeding having for its object the review of an order confirming a sale made in pursuance of a decree of foreclosure. There was filed with the transcript a petition in error, but the plaintiffs in error ask that the court consider the case as also presented on appeal. This we cannot do. It is the settled practice that a party whose case is in its nature appealable has an election as to the method of review, but he cannot pursue both methods. By filing a petition in error' that method was here selected. (Burke v. Cunningham, 42 Neb., 645; Woodard v. Baird, 43 Neb., 310; Monroe v. Reid, 46 Neb., 316; Beatrice Paper Co. v. Beloit Iron Works, 46 Neb., 900; Childerson v. Childerson, 47 Neb., 162; Thomas v. Churchill, 48 Neb., 266.)
The first assignment of error discussed in the briefs is that the order of confirmation was obtained by the mortgagee’s waiving his right to a judgment for the deficiency remaining after applying the purchase money to the payment of the decree. The argument is that the court would not have confirmed the sale at the price bid unless the right to a deficiency judgment had been waived, that this course was taken as a substitute for a resale, and so operated to the prejudice of the defendants. Unfortunately for this contention,it finds no support in the record. The order of confirmation recites that the court finds the proceedings regular and according to law. That finding required an absolute confirmation. The waiver of the personal judgment appears as a part of the same journal entry, but after the order of confirmation and without anything to indicate that the two were interdependent.
The next assignment is that the notice was. not published for thirty days prior to the day of sale. It is quite doubtful whether this assignment is sufficiently specific to present for review many of the questions raised with regard to the published notice. We nevertheless shall consider these questions as if properly presented. The sale took place February 21,1894. The affidavit of publication, which is undisputed, is as follows: “I, S. S. Smith, being duly sworn, on oath say that I am one of the publishers of the Nebraska Standard, a weekly newspaper of general circulation, published in Kearney, Buffalo county, Nebraska, and that the notice, a true copy of which is hereto annexed, was published five consecutive weeks in the regular and entire issue of every number of said newspaper for the time stated, the first publication being on the 19th day of January, A. D. 1894.” There can be no doubt that publication of such a notice in a weekly newspaper satisfies the statute, the language of which is “public notice of the time and place of sale to be given for at least thirty days before the day of sale by advertisement in some newspaper printed in the county, or in case no newspaper be printed in the county, in some newspaper of general circulation therein.” (Code of Civil Procedure, sec. 497.) That the publication being in a weekly newspaper was at the proper time and for a sufficient period before the sale, see Carlow v. Aultman, 28 Neb., 672, and Von Dorn v. Mengedoht, 41 Neb., 525. In this connection the pdint is made that the affidavit was executed February 17, 1894, which was less than thirty days after the first publication of the notice, and therefore could not serve as proof of publication for the requisite time. An inspection of the cases cited, together with others cognate thereto., will disclose that it has always been the opinion of this court, and
Another assignment is that a copy of the appraisement was not filed with the clerk of the district court thirty days before the date of sale, or forthwith after making the appraisement. The appraisement was made January 13, which was more than thirty days before the sale and before the first publication of the notice, and the sheriff returns that he “forthwith” after the appraisement deposited a copy thereof with the clerk of the district court. There is no other evidence on the subject, and while a transcript of the copy so deposited does not appear, the clerk does not certify up the whole record but only certain designated instruments, so that we can infer nothing contrary to the officer’s return from the absence of the copy.
Next it is assigned that the appraisement was fraudulent. On this point plaintiffs in error rely on the inadequacy of the appraised value as establishing fraud. Affidavits in the bill of exceptions show that witnesses estimated the value of the property as greater than the value placed thereon by the appraisers. There is not, however, so great a discrepancy as to justify any inference of fraud. The question sought to be raised is, in effect, merely that of the sufficiency of the appraisers’ valuation. Such objections must be filed before the sale. A case in point, where the objection was in the same form as here presented, is Hamer v. McFeggan, 51 Neb., 227.
Some other points are referred to in the briefs, but they are not presented by the petition in error.
Affirmed.