McMurtry v. Tuttle & Doolittle
| Decision Date | 07 September 1882 |
| Parties | J. H. MCMURTRY, IMPLEADED WITH UNIVERSITY BOARDING HALL ASSOCIATION, PLAINTIFF IN ERROR, v. TUTTLE & DOOLITTLE, DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county. Tried below before POUND, J.
AFFIRMED.
J. A Marshall, for plaintiff in error.
S. J Tuttle, for defendants in error.
On the twenty-ninth day of July, 1882, the sheriff of Lancaster county sold, upon execution, lot 12 in S.W. Little's addition to Lincoln, to J. H. McMurtry, for the sum of $ 850. The plaintiffs in execution thereupon filed a motion to confirm the sale, and caused a notice of the same to be served upon the University Boarding Hall Association by "leaving a true and correct copy of the same with Austin Humphrey, treasurer of the defendant corporation, the president and secretary of the same both being absent from said county and state." The purchaser resisted the confirmation upon two grounds, viz., that the service of process was defective, and that the court had no authority in vacation to confirm a sale upon execution. The court overruled the objections, and confirmed the sale. The purchaser brings the cause into this court by petition in error.
Sec. 73 of the code provides that a summons against a corporation may be served upon the president, manager, chairman of the board of directors or trustees, or other chief officer; or if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent; or if none of the aforesaid officers can be found, by a copy left at the office, or last usual place of business of such corporation.
The notice in this case was properly served on the treasurer of the corporation, the president and secretary being absent, and the statement of such absence in the return is sufficient. The first assignment of error was therefore properly overruled.
Sec 498 of the code provides that if the court, upon the return of any writ of execution or order of sale, for the satisfaction of which any lands and tenements have been sold, shall, after having carefully examined the proceedings of the officer, be satisfied that the sale has in all respects been made in conformity to the provisions of this title, the court shall direct the clerk to make an entry on the journal that the court is satisfied of the legality of such sale, and an order that the...
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