Penn Mutual Life Insurance Company v. Creighton Theatre Building Company
| Citation | 74 N.W. 583,54 Neb. 228 |
| Decision Date | 17 March 1898 |
| Docket Number | 9097 |
| Parties | PENN MUTUAL LIFE INSURANCE COMPANY, APPELLEE, v. CREIGHTON THEATRE BUILDING COMPANY ET AL., APPELLEES, AND ABRAHAM L. REED ET AL., APPELLANTS |
| Court | Supreme Court of Nebraska |
APPEAL from the district court of Douglas county. Heard below before SCOTT, J. Affirmed.
AFFIRMED.
William D. Beckett, J. W. Woodrough, and Hall & McCulloch, for appellants.
Montgomery & Hall, John L. Webster, and Frank T. Ransom, contra.
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, 71 N.W. 279, 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 confirmation of the sale to F. P. Kirkendall and A. L. Reed, and upon the evidence, and was submitted to the court."
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 the sale. The Creighton Theatre Building Company neither asked nor opposed confirmation, and did not in any way 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 the undoubted right, if not the duty, of the district court to set the sale aside, unless its hands were tied by the rules of procedure. Judicial sales are made by the court acting through its appointed agent. The parties to an action may not, even by their express agreement, secure the appointment of a master of their own choice. Neither may they, after an appointment has been made, effect a substitution by mutual consent. Parties are not permitted to wrest from the court the processes by which its decrees and orders are carried into execution. Besides, the defendant in the case, the party having possibly the most vital interest, did not consent to a sale by Watson. True, it did not object, but it was under no legal obligation to do so. It was the duty of the court to protect its rights without special solicitation. The court was authorized to confirm the sale only after having carefully examined the proceedings of the officer and being satisfied that such sale was in all respects made in conformity with law. On the trial of issues having relation to the proceedings of the master under the order of sale, some of which issues were presented for trial by appellants, and in all of which they participated, it was conclusively established that the sale was not only grossly irregular but made by an unauthorized, and perhaps an irresponsible, person; and, on the record before us, we would be justified in indulging the presumption, if necessary to sustain the action of the trial court, that the affidavits which prove these facts were given in evidence by the appellants themselves. But it is contended that the officer's return is conclusive and that the court could not look beyond it in discharging the duty imposed upon it by the statute. That, surely, cannot be so in a case where the court has before it a record showing the recitals in the return to be untrue. The court was required by the statute to confirm only upon being satisfied that the sale was in all respects in conformity with law. That being so, appellants are in the attitude of insisting that the court must have been satisfied that the sale was regular, notwithstanding there had just been submitted to it undisputed evidence showing the rankest irregularities. There is nothing peculiarly sacred about a master's return. It possesses no mystic efficacy to compel belief in its recitals when it conclusively appears that those recitals are false.
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