Helmer v. Rehm

• Decision Date: 22 March 1883
• Citation: 15 N.W. 344,14 Neb. 219
• Parties: HELMER v. REHM.
• Court: Nebraska Supreme Court

14 Neb. 219

15 N.W. 344

HELMER

v.REHM.

Supreme Court of Nebraska.

Filed March 22, 1883.

Error from Lancaster county.

Burr & Marshall, for plaintiff.

M. H. Sessions, for defendant.

LAKE, C. J.

I can discover in this record but a single ground on which the refusal of the court to confirm the sale can be sustained, and that is the error in the description of the land found in the published notice given by the sheriff, and this is not one of the grounds of objection urged by counsel against this sale. The land attached and ordered sold by the judgment was the N. 1/2 of the S. E. 1/4 of section 30, in township 12 N., range 5 E. And this is the tract which the sheriff returned as sold under a notice given on the ninth of April, of a sale to take place on the tenth of May, 1881. Referring to the notice, it is found that the description of the land to be sold was “the north half (N. 1/2) of the south- west quarter (S. E. 1/4)” of said section.

The sale of attached land under an order of court is governed by “the same restrictions and regulations as if the same had been levied on by execution. Civ. Code, § 228. One of these regulations is that notice shall be given of the time and place of sale, as provided in section 497. And another, that the court shall carefully examine “the proceedings of the officer” in making the sale, and if satisfied that it has “in all respects been made in conformity to the provisions” of the statute on that subject, an order of confirmation may be entered. This notice was clearly defective. It is true that the abbreviated number, in parenthesis, is correct, and possibly, might have upheld the sale, if the court had seen fit to confirm it. But, howsoever this might be, I do not think that this court would be warranted in saying that with such a notice there was an unlawful exercise of the supervisory control given to the district judge over sales, in setting this one aside. The fact that this objection was not brought to the attention of the judge by counsel, did not prohibit him from taking cognizance of the defect and acting upon it. It was his duty to examine the proceedings of the sheriff, and if not “satisfied” in reason of the legality of the sale, it was his duty to set it aside. I am not prepared to lay it down as a rule that a notice like this one should be upheld as against the judgment of the court to which it was first presented for approval.

The first three objections urged against the sale go to the...