63 Neb. 445 | Neb. | 1902
From a final order of confirmation of a sale of real estate made in foreclosure proceedings, defendants appeal. But two grounds are advanced for a different holding from that adopted by the trial court. , First, it is argued that the court erred in not sustaining a demurrer to the petition on which the decree was founded. But, on an appeal from an order of confirmation, it is too late to ask a review of rulings involving the merits of the original decree. Beatrice Paper Co. v. Beloit Iron Works, 46 Nebr., 900. Secondly, it is contended confirmation should be withheld because the property was sold under a third appraisement, when it had never been advertised and offered for sale twice and not sold for want of bidders, under the appraisement first had. The facts, as disclosed by the record, appear substantially as follows: An order of sale was issued on the decree rendered in the case and the property appraised at $2,700. There is some controversy as to whether the appraisement thus made was regular, and assented to by the three appraisers acting in relation to the matter. Without making any return of an appraisement, and at the request of the plaintiff’s attorney, the order of sale was returned by the sheriff into court without further action, and an alias order of sale issued and the property was again appraised and offered for sale and bid in. This proceeding was unauthorized, as no second appraisement could rightfully be had until the property had been twice advertised and offered for sale under the first appraisal, and not sold for want of bidders, or until the court had been appealed to to vacate the appraisement because of some valid reason ren
After the proceedings last noted, a pluries order of sale was issued and the property again appraised, advertised for sale, and sold for more than two-thirds of its appraised value. To the appraisement last made defendants again interposed objections, and moved to vacate the same for substantially the same reasons offered in the motion to vacate the second appraisement. A motion was also presented and filed to require the sheriff to make a return of the appraisement alleged to have been first made on January 18. No objection being made to the order setting aside the prior appraisal and directing a neAV one on the motion and objection to the second appraisement, nor any effort made to have the order so made vacated or modified, we think it must follow that the question was adjudicated in the ruling there had, and that the court properly overruled the motion last made. The court having once passed upon the question, and presumably correctly, it was not called upon to again relitigate the same matter, and the defendants have no just cause of complaint because of its refusal to do so.
On the evidence presented in support of the motion to
For the reason stated the order of confirmation ought to be, and accordingly is,
Affirmed.