51 Neb. 659 | Neb. | 1897
The Penn Mutual Life Insurance Company brought an action in the district court of Douglas county to foreclose a mortgage made by the Creighton Theatre Building Company. This proceeded to decree, and on the 30th
“I received two bids for said property, as follows:
“Prom Abraham L. Reed and Freeman P. Kirkendall, by William I). Beckett, their attorney, I received a bid of $117,000, at 10:57 o’clock A. M., that sum being more than two-thirds of the appraised value of said property; no other bids having been received by 11 A. M., I accepted from said bidders the sum of $20,000 upon said bid, deeming it unnecessary to require the whole amount of said bid to be deposited with me until just prior to the confirmation.
“Being informed at that time that other bids might be made, I deemed it my duty to receive any such bids in case they should, be made, and thereafter, at 1:20 o’clock P. M., I received a bid for said property from Edward W. Nash, trustee, of $117,500. No other bids being made up to 9 o’clock P. M., I declared said property sold to Edward W. Nash, trustee, for the sum of $117,500.
“Immediately after declaring said property sold to Edward W. Nash, trustee, I tendered back to William D. Beckett, attorney for Abraham L. Reed and Freeman P. Kirkendall, the sum of $20,000 paid by them upon their bid by said Beckett, and said Beckett then and there refused to receive the same. Said Edward W. Nash, trustee, then paid to me the sum of $27,000 upon his bid, I deeming it unnecessary to require the whole of said bid to be deposited with me at that time, and it was agreed that the-balance of the bid should be paid prior to the confirmation of the sale. The amount paid by said Edward W. Nash, trustee, was the highest bid made for the property and not less than two-thirds of the appraised value thereof.”
As soon as the master’s report was' filed, plaintiff moved “to confirm the sale made by the special master commissioner.” Reed & Kirkendall moved to confirm the sale “made by the special master commissioner to
The order setting aside the sale shows that the various motions were heard upon evidence. The record contains no bill of exceptions embodying this evidence. The appellees have, however, filed a certified transcript of what purport to be affidavits used on the hearing of the motions in the district court, and ask us, for the purpose of the pending motion, at least, to consider this transcript in the place of a bill of exceptions. This we cannot do. It would be supererogatory on this point to cite the multitude of decisions holding that, for the consideration of evidence used in the district court, it is essential that it should be embodied in a bill of exceptions duly settled, allowed, and authenticated; and that the clerk’s certificate verifying copies of affidavits on file cannot under any circumstances take the place of such a bill. We must, therefore, consider the motion solely in the light of the transcript of the record before us. The argument of the motion covered quite generally the merits of the appeal, and while in one sense those merits are to a certain extent necessarily involved, we cannot on this motion finally pass thereon. The right of a party to appeal does not depend upon his having in fact a meritorious ground for the appeal. We take it that the question presented is not whether by the sale Reed & Kirkendall obtained
A few propositions established by former decisions of this court go far towards solving the question. In the first place it has been held that an order setting aside a judicial sale is in its nature appealable. (Berkley v. Lamb, 8 Neb., 392.) It is contended that the order in the case cited was appealable only because the sale was set aside for a reason which prevented a resale, and therefore determined the proceeding. Some of the language ‘ used by the court indicates that this feature was considered an important one in the case. But the decision was based largely on the authority of Mayer v. Wick, 15 O. St., 548, where the same rule was announced under circumstances which permitted a resale. Moreover, in Bachle v. Webb, 11 Neb., 423, in Roberts v. Robinson, 49 Neb., 717, and perhaps in other cases, this court has entertained appeals from such orders, reversed the order setting aside the sale, and ordered confirmation thereof, showing that the doctrine of Berkley v. Lamb has not by the court been confined so narrowly as the argument referred to would require. It is also settled by the same cases that the court, in examining a foreclosure or execution sale, is not vested with any arbitrary discretion to set the sale aside. On the other hand, if the sale was regularly made in conformity to the decree and to law, the parties have a right to insist upon confirmation. In Nebraska Loan & Trust Co. v. Hamer, 40 Neb., 281, where the contest was
But it is contended that while the right to appeal may exist after^a resale and final order of confirmation an order merely setting aside the sale and ordering a new one is not final and does not affect the purchaser’s rights, because on the resale he may obtain the property on terms equally advantageous. In support of this view we are cited to Childs v. Hurd, 25 W. Va., 530. In the first place, it is to be remarked that the court was there considering a statute fixing the right to appeal which is much narrower than ours. In the second place, that case seems contrary to the weight of authority; as, for
On this motion it remains only then to consider whether these particular appellants appear on the record to occupy the position of purchasers whose rights, if any, have been defeated by the order complained of. It appears from the master’s report that the property was offered at 10 A. M.; that at 10:57 the appellants made their bid of $117,000, being more than two-thirds the appraised value of the property, and that at 11 A. M., no other bid having been received, the master accepted from them $20,000 upon the bid, “deeming it unnecessary to require the whole amount of said bid to be deposited until just prior to the confirmation.” While we are not aware of any statute on the subject, it is a settled practice in this state to hold such a sale open one hour. From this fact and from the fact that the bid was reported, that the master received a portion of the purchase money, which is not usual and which probably could not be demanded from a bidder whose bid is not accepted, and also
There is also presented a motion by the same parties to vacate a supersedeas heretofore allowed. The history of this proceeding is as follows: The appellants applied to the district court for an order fixing the amount of a supersedeas bond under subdivision 3 of section 677 of the Code of Civil Procedure. This application was denied. After the case was brought to this court, a similar application was made to us, on the theory that the order complained of was one directing the sale of real estate within the meaning of the third subdivision of section 677, and that the appellants were, therefore, as of right, entitled to a supersedeas on giving a bond conditioned against the suffering or commission of waste. There being at the time no opportunity for a full hearing of the parties and a deliberate investigation of the question presented, an order was made allowing a supersedeas in pursuance of the statute referred to, with leave, however, to the appellees to move to set aside the order. On further investigation and reflection we think the case is not one in which the appellees are entitled as of right to a supersedeas. The subdivision of section 677, to which reference has been made, evidently contemplates an appeal by the party in possession, the former owner whose title or right of possession will be divested by the order of sale or delivery of possession. This is apparent from
Judgment accordingly.