Howell v. Gilt-Edge Manuf'g Co.

• Citation: 49 N.W. 704,32 Neb. 627
• Parties: HOWELL v. GILT-EDGE MANUF'G CO.
• Decision Date: 15 September 1891
• Court: Supreme Court of Nebraska

32 Neb. 627

49 N.W. 704

HOWELL

v.GILT-EDGE MANUF'G CO.¹

Supreme Court of Nebraska.

Sept. 15, 1891.

Syllabus by the Court.

1. Under sections 433 and 436 of the Civil Code judgments by confession can only be entered by the debtor personally with the assent of the creditor, or by an attorney, who shall, at the time of making the confession, produce the warrant of attorney for making the same, the original or a copy to be filed with the clerk of the court in which judgment is entered.

2. Held, that a sale upon execution issued on judgment confessed in a county court not in compliance with the provisions of the statute was void.

Appeal from district court, Platte county; POST, Judge.

Action by Spooner R. Howell against the Gilt-Edge Manufacturing Company. Plaintiff obtained a judgment, and defendant's premises were sold on execution. Leander Gerard, the purchaser, and the Columbus State Bank, now object to the confirmation of the sale. From an order setting aside the sale plaintiff appeals. Affirmed.O. A. Abbott and Sullivan & Reeder, for appellant.

M. Whitmeyer and I. L. Albert, for appellee.

COBB, C. J.

This appeal was brought to reverse the final order of the district court of August 11, 1890, setting aside the sale to Leander Gerard, of the north half of block 6, in Highland Park addition to the city of Columbus, levied upon and sold, on August 4, 1890, by the sheriff under two executions at law issued out of said court upon two judgments for the sum of $700 each, in favor of Spooner B. Howell, plaintiff, against the Gilt-Edge Manufacturing Company, defendant. The Columbus State Bank and Leander Gerard appeared on August 8th, and by their petitions to the court objected to the confirmation of the sale on the grounds that the land was mortgaged to the bank to secure $4,303.71, April 21, 1890, recorded June 10th following, and due and unsatisfied; (2) that at the time of the levy of the executions the judgment debtor owned personal property of the value of $1,500, then upon the premises, subject to levy and sale; (3) that the judgments were void, not having been rendered against a private corporation, in accordance with law; (4) that C. A. Woosley, who confessed the judgments against the defendant corporation, was not such an authorized manager as to render his acts valid; (5) that there was no confession of indebtedness or of judgment, upon which to render judments by the court against the defendant corporation; that if the sale is confirmed, the proceeds would be applied on the judgments, and the bank would be deprived of its mortgage lien. The purchaser objected to the confirmation on the grounds that the court was without jurisdiction to render the judgment upon which the executions were issued and the sale to him made; that the prior incumbrance of the Columbus State Bank, of record in the county clerk's office, was erroneously omitted to be certified to the sheriff prior to the sale, and was not deducted from the appraised value of the property, and still constitutes a lien, which, in the case of confirmation, he will be compelled to satisfy, in order to protect such title as he may take under the sale. Upon the plaintiff's motion to confirm the sale, and upon the counter-motion of the purchaser to vacate it, as well as upon the objections of the bank to the confirmation, there was a hearing upon evidence submitted to the court, and the court found for the purchaser upon the first objection offered and against him on the second objection presented. The motion of the plaintiff was overruled, and the sale was vacated and set aside, and the purchaser released from the sale and from his purchase of the real estate set forth. To all of which the plaintiff excepted.

It appears plainly that the court was well advised in overruling the motion to confirm this sale. If a purchaser can derive no title under a judicial sale, he is entitled to be relieved of it, if the purchase be clouded with circumstances of legal misapprehension. It is certain that if, as the court found, the judgments upon which the executions were issued were rendered without jurisdiction, and without due process of law, the sale under the writs was void, and the purchaser took no title to the property. An examination of the record discloses that the plaintiff appeared in the county court, presented two petitions against the defendant, and asked for judgment. There was no process, but C. A. Woosley, as manager, entered an appearance, waived summons, and confessed judgment against the defendant for the...