54 Neb. 228 | Neb. | 1898
Lead Opinion
From an order of the district court for Douglas county refusing to confirm a judicial sale Abraham L. Reed and Freeman P. Kirkendall, claiming to be purchasers of the property sold, have prosecuted an appeal to this court. The facts out of which the controversy arises are sufficiently stated in the case of Penn Mutual Life Ins. Co. v. Creighton Theatre Building Co., 51 Neb. 659, and need not be restated here. To show the manner in which the cause was submitted to the district court we make the following excerpt from the order vacating the sale: “This cause came on to be heard upon the return of sale by the special master commissioner heretofore appointed by this court, and upon the motion of the plaintiff for an order confirming such sale, and upon motion of F. P. Kirkendall and A. L. Reed to confirm the sale to them, and their objections to confirmation of the sale to E. W. Nash, trustee, and upon the motion of E. W. Nash, trustee, to confirm the sale to him, and upon his objections to the
Looking into the bill of exceptions filed since the motion to dismiss the appeal was decided we find that there was presented at the hearing, for the consideration of the court, an affidavit of Isaac N. Watson, from which it appears that the alleged sale was conducted by him acting as the representative of James B. Meikle, the special master commissioner, who was absent from Douglas county attending to business of public concern at the capital of the state. By whom, or in whose behalf, this affidavit was given in evidence is not disclosed by the record, but it seems to have been received without objection, and it cannot now be argued out of the case. That Meikle was absent from Omaha at the time the bid of Reed and Kirkendall was received and acted on is also fully established by the affidavit of Matthew A. Hall. For whom, or upon what issue, Mr. Hall’s affidavit was read is not shown; but it is in the record, it was submitted without objection to the district court as competent evidence to influence its action on the question before it for judgment, and it must now be considered by this court as evidence in support of the order vacating tin» sale. The Creighton Theatre Building Company neither asked nor opposed confirmation, and did not in any Avay participate in the hearing which resulted in the order of which appellants complain. It has, however, appeared here and filed a brief urging an affirmance of the ruling of the district court.
The power conferred by the court upon the special master commissioner to make the sale was a personal trust which he could not delegate to Watson. Section 852 of the Code of Civil Procedure declares that “all sales of mortgaged premises under a decree in chancery shall be made by a sheriff, or some other person authorized by the court.” The sale to appellants not having been made by a person designated in the decree for that purpose, it was
Various decisions of this court are cited in support- of the proposition that a party will not be heard to complain of an order confirming a sale when he has not moved for a vacation, of the sale and specifically assigned his objections thereto. (Ecklund v. Willis, 44 Neb. 129; Vought v. Foxworthy, 38 Neb. 790; State v. Doane, 35 Neb. 707; Johnson v. Bemis, 7 Neb. 224.) These decisions are right. They establish a wholesome rule of practice and will be adhered to, but they have no application to the question now before us. The rule simply means that one who complains of judicial errors must show that such errors did not occur through his fault. Had there been an order of confirmation and had it been brought here for review by the theatre company these precedents might be cited with appropriateness and profit; but in this case it happened to be unnecessary to challenge the attention of the court (o the irregular proceedings which resulted in the illegal sale. The court itself discovered, by an inspection of the record made by the parties to the action, that its process had been abused and acted accordingly; and 1 he action of the court was not arbitrary. The reason for it appears in the record. It was entirely justifiable, and deserves to be commended rather than condemned. The conclusion reached renders unnecessary a construction of the master’s return. The order appealed from is
Affirmed.
Dissenting Opinion
dissenting.
I concur in the opinion of the court in so -far as it holds that a judicial sale must be made by the person designated in the decree or order of the court for that purpose,
It has always been the rule of this court, as it is the prevailing doctrine elsewhere, that while a purchaser at a judicial sale depends upon confirmation to finally establish his title, still the sale partakes of the essence of a contract, and, if the proceedings are regular, the purchaser acquires, by the acceptance of his bid, a right to have his title completed. The right so acquired cannot be defeated by the arbitrary action of the parties or of the court, although such action may be in the interest of the parties or of fair dealing. (Penn Mutual Life Ins. Co. v. Creighton Theatre Building Co., 51 Neb. 659, where the authorities are cited.) If the sale is set aside, it must be because of some vice or irregularity in the proceedings, either appearing on-the face of the record or disclosed by proper proceedings, and by evidence so adduced that the purchaser may be heard to defend against the attack.
On examining this record we find the master’s report showing throughout that he conducted the sale personally. On the coming in of the report the plaintiff moved to confirm the sale generally. Appellants moved to confirm the sale to them. Nash moved to confirm the sale to him, and objected to its being confirmed to the appellants. Appellants objected to confirming the sale to Nash. No one objected to the sale itself or moved to set it aside. The only question was as to which purchaser had been successful; that one of them had regularly purchased was on the record conceded by all parties except the theatre company, which was served with notice of the motion to confirm, and by not objecting consented to confirmation. It was not an infant or a lunatic, and had no right to expect the court to act as its voluntary guardian. There was, therefore, no issue before the court as to the truthfulness of the master’s report. Two affidavits appear in the bill of exceptions stating that the sale was not made by the master. The irregularity appears solely from these. They were not relevant to any issue before the court. For that reason they were not open to contradiction; for that reason their makers were not subject to the penalties of perjury if they were false. The master was an officer of the court. His report is a part of the record, and is entitled to the same weight, as evidence of the matters therein set forth, as any other return of any other writ by any officer. To my mind it is dangerous in the extreme to permit an incidental statement, in an affidavit relating to other issues and irrelevant to any proceeding pending, to impeach such a return, and be treated as higher evidence than the report of the court’s officer. In Lefevre v. Laraway, 22 Barb. [N. Y.] 167, the plaintiff moved for a resale in a partition case. lie was not entitled thereto, but his motion, and the proofs by him adduced in support