Orcutt v. Polsley

• Decision Date: 24 January 1900
• Docket Number: 9,112
• Citation: 81 N.W. 616,59 Neb. 575
• Parties: CLINTON ORCUTT, APPELLEE, v. E. E. POLSLEY ET AL. APPELLANTS
• Court: Nebraska Supreme Court

81 N.W. 616

59 Neb. 575

CLINTON ORCUTT, APPELLEE, v. E. E. POLSLEY ET AL. APPELLANTS

No. 9,112

Supreme Court of Nebraska

January 24, 1900

APPEAL from the district court of Douglas county. Tried below before POWELL, J. Affirmed.

AFFIRMED.

Lane & Murdock and W. A. Saunders, for appellants.

Charles W. Haller, contra.

OPINION

NORVAL, C. J.

This suit was commenced in the district court of Douglas county by Clinton Orcutt, against Polsley, Bingham and Homan and others, to foreclose a mortgage upon certain lots situate in the city of South Omaha. The defendants named appealed to this court from an order confirming the sale, and from a judgment rendered for a deficiency remaining after applying such proceeds of such sale to the payment of the amount found due on the debt. The summons was indorsed only "Foreclosure of mortgage." On the appraisement of the property sold, the sum of about $ 800 was deducted from its appraised value, on account of delinquent taxes, a large part of which are claimed by defendants to be invalid local improvement assessments. The property sold for two-thirds of the appraised value, after deducting the amount of said taxes. The principal errors urged by said Polsley, Bingham and Homan are, the deducting by the appraisers from the value of said real estate the amount of said taxes, and the rendering of the deficiency judgment under the summons so indorsed. It is further urged that the appraisement of said real estate was far below its fair market value.

As to the first objection, we would say that we fail to find any evidence of record which in any manner tends to establish the fact that any of the taxes so deducted were assessments for local improvements, either valid or invalid. The certificate of the county treasurer characterizes them merely as delinquent taxes for certain years. An affidavit is on file to which this court is referred as containing evidence that certain local improvement assessments were by the county treasurer included in the amount of taxes designated in said certificate; but, without discussing the proposition whether a matter of record can be established by the mere affidavit of a person who has examined such record, we are convinced, on a careful reading of this affidavit, that it consists of conclusions wholly, which must be disregarded, and that the only evidence of record touching the character of these liens is the certificate of the county treasurer.

The...