Philadelphia Mortgage & Trust Co. v. Mockett, 55 Neb. 323

Philadelphia Mortgage & Trust Co. v. Mockett

55 Neb. 323 | Neb. | 1898

Noryal, J.

This appeal was taken from an order confirming the sale of real estate under a mortgage foreclosure. A single ground urged for a reversal is that a copy of the ap-praisement was not filed with the clerk of the district court until the day preceding the sale. The copy of the appraisement should have been deposited in the office of the clerk of the court wherein the decree was rendered before the sale was advertised. (Burkett v. Clark, 46 Neb. 466; Creighton University v. Mulvihill, 49 Neb. 578.) The omission indicated was such a defect in the proceedings as to have wrought a reversal, had the same been seasonably urged; but the objection is for the first time presented in this court in the brief of counsel for appellants, as no motion to vacate the appraisement or to set aside the sale was filed in the court below.

It was argued by the same counsel that it was not necessary to file objections to the report of the sale to make available the point now urged against the proceedings of the sheriff; that section 498 of the Code of Civil Procedure makes it the duty of the court to examine the proceedings and return of the officer under an order of sale, whether objections are filed or not, and confirm

*324the sale, if found to be regular and made in conformity with law, and refuse confirmation and vacate the sale if the proceedings are defective; and that objections to a judicial sale are only required to be filed when it is sought to raise issues not disclosed by the face of the record. Doubtless, the court may, without objection being filed, vacate a sale where the return of the officer discloses the statutory steps have not been taken by him: but that is an entirely different matter from the question of practice which confronts us. Irregularities and errors in proceedings of courts may be waived by parties failing to take advantage thereof at the proper time, and this is no less true with respect to defects occurring in judicial sales. Whatever may be the rule elsewhere, it is firmly established in the jurisprudence of this state that objections to a confirmation of sale not urged in the trial court are not available on review. (Johnson v. Bemis, 7 Neb. 224; Runge v. Brown, 29 Neb. 116; Ecklund v. Willis, 42 Neb. 737; Hooper v. Castetter, 45 Neb. 67; Burkett v. Clark, 46 Neb. 466; Creighton University v. Mulvihill, 49 Neb. 577.) The order appealed from is accordingly

Affirmed.