Ecklund v. Willis

• Decision Date: 05 March 1895
• Citation: 44 Neb. 129,62 N.W. 493
• Parties: ECKLUND v. WILLIS.
• Court: Nebraska Supreme Court

44 Neb. 129

62 N.W. 493

ECKLUND

v.WILLIS.

Supreme Court of Nebraska.

March 5, 1895.

Syllabus by the Court.

1. Objections to the confirmation of a sale of real estate must be specifically assigned in the motion filed in the lower court to vacate the sale, or they will be unavailing.

2. The appraised value of property made under an order of sale can be assailed only for fraud.

3. Objection that the property was appraised too high should be made and filed in the case, with a motion to vacate the appraisement, prior to the sale. Vought v. Foxworthy, 57 N. W. 538, 38 Neb. 790;Smith v. Foxworthy, 57 N. W. 994, 39 Neb. 214.

Appeal from district court, Lancaster county; Tibbets, Judge.

Action by one Ecklund against Elijah J. Willis to foreclose a mortgage. From an order overruling the objections of defendant to the confirmation of the sale, defendant appeals. Affirmed.

No appearance on either side.

NORVAL, C. J.

This is an appeal from an order of the district court overruling the objections of the defendant, Elijah J. Willis, to the confirmation of the sale of real estate made under a decree of foreclosure, and in confirming said sale. The following are the grounds set up in defendant's motion to set aside the sale: (1) The appraisement is irregular. (2) The appraisement is not in accordance with law governing sheriffs' sales. (3) The return of the sheriff shows that the appraisers were not sworn, as provided by law. (4) The property was not appraised at its fair value, but at about one-half its true value, as shown by the affidavits on file in above case in support of motion to vacate order appointing a receiver. (5) The entire proceedings relative to said sale are irregular, and not in accordance with the provisions of the law governing sheriffs' sales.

The cause was submitted in this court without either briefs or oral argument; hence we are not advised on which of the several grounds urged against the confirmation in the court below the appellant now relies for a reversal of the cause. It is obvious that the first, second, and fifth objections contained in said motion are too general and indefiniteto call for consideration. In what respect the appraisement and the proceedings leading up to the sale are irregular, and not in accordance with the statute relating to judicial sales, is not pointed out. Objections to the confirmation of a sale of real property must be specifically assigned in the lower court, or they will be unavailing. Johnson v. Bemis, 7 Neb. 224.

The third exception to the confirmation is not sustained by the record, since the return of the sheriff to the order of sale recites that the appraisers were sworn by him to impartially appraise the interest of the defendant in the mortgaged premises.

The remaining ground of the motion--namely, that the property was appraised too low--is not well taken, for three reasons: First. Affidavits were filed in the court below in support of and in opposition to the motion, but they have not been embodied in a bill of exceptions. Therefore we cannot review the evidence upon which the district court based its decision. Aultman v. Howe, 10 Neb. 8, 4 N. W. 357;Walker v. Lutz, 14 Neb....