State Bank of Nebraska v. Green

• Decision Date: 09 April 1879
• Citation: 1 N.W. 210,8 Neb. 297
• Parties: STATE BANK OF NEBRASKA, APPELLEE, v. JOHN H. GREEN, APPELLANT.
• Court: Nebraska Supreme Court

8 Neb. 297

1 N.W. 210

STATE BANK OF NEBRASKA, APPELLEE,

v.JOHN H. GREEN, APPELLANT.

Supreme Court of Nebraska.

Filed April 9, 1879.

Appeal from Washington County.

Woolworth & Munger, for appellant.

George E. Pritchett, for appellee.

MAXWELL, C. J.

--Certain real estate of the defendant was sold at judicial sale, and the sale confirmed in vacation. The defendant appeals to this court. The plaintiff moves to dismiss the appeal upon the ground-- First, that the order is not appealable, not having been made by the district court; second, because the transcript does not contain, nor purport to contain, all the pleadings, proceedings and testimony.

That an order confirming a sale is a final order, will not be denied. This is admitted by the attorney for the appellee, but it is claimed that the sale having been confirmed by the judge in vacation, it does not, therefore, come within the provisions of the statute which provides that “either party may appeal from the judgment or decree rendered, or final order made by the district court.” Gen. Stat. 716.

The act approved February 25, 1875, amending sec. 498, of the Code, after providing for a confirmation by the court, further provides, “that the judge of any district court may confirm any such sale at any time after such officer has made his return, on motion and ten days' notice to the adverse party, or his attorney of record, if made in vacation.” It is also provided that the judge confirming the sale shall cause the order to be entered on the journal. Laws 1875, p. 38.

Sec. 23, art VI. of the constitution, provides that “the several judges of the courts of record shall have such jurisdiction at chambers as may be provided by law.”

In sales made under a decree, the court is the vendor and the sheriff is commissioner, making the sale a mere instrument (Frasher v. Ingham, 4 Neb. 537), but no title passes by the sale until the sale is confirmed; and the same rule applies to sales upon execution. The confirmation, when made, becomes the act of the court, whether made in vacation or in open court. That the legislature has authority to confer such power upon judges in vacation, there is no question. The order of confirmation, although made by the judge in vacation, was entered upon the journal of the court, and became a part of its records, and, until reversed, is the final judgment of the court, from which an appeal will lie.

As to the second objection, it is sufficient to say that the causes assigned are not sufficient of themselves to authorize the court in dismissing the appeal. If it should appear, upon an examination of the record, that it was so defective that the questions presented can not be reviewed, the court will take such action as may be proper in the premises. The motion to dismiss the appeal is overruled.

Judgment accordingly.

LAKE, J., dissented.

The cause then came on to be heard, was argued by counsel, and submitted to the court.

MAXWELL, C. J.

--In April, 1874, the appellant executed and delivered to John I. Redick three promissory notes, each for the sum of $8,333.33, payable in one, two, and three years, with interest at ten per cent, and, to secure the payment of the same, executed a mortgage upon certain real estate in Washington County. It is alleged in the petition that the first note was paid. The second note was indorsed by Redick, and transferred to the appellee before maturity. Upon the maturity of the note it was protested for non-payment, and notice given to Redick.

In April, 1876, an action of foreclosure for the amount due on the second note was instituted in the district court of Washington County, Green, Redick, and the Omaha National Bank being made defendants, and at the November term, 1876, of said court, a decree for the sum of $10,509.24 and costs and attorney's fees was taken against Green and Redick, the Omaha National Bank being permitted to withdraw its claim without prejudice.

A sale of the mortgaged property was had under said decree, which sale was confirmed on the sixth day of December, 1877, and an order made that the plaintiff have execution for the deficiency against Green and Redick for the sum of $9,954.72. It was further ordered that in case Green, within forty-eight hours, executed an undertaking to the plaintiff in the sum of $3,000, to pay the plaintiff $2,000 in sixty days, that, in case of the payment of the money within that time, he should have a re-conveyance of the property. The defendant (appellant) excepted to the order, and the supersedeas bond was fixed by the court at $2,000. On the next day Green executed a supersedeas bond for the sum of $2,000, with sureties, which was approved by the clerk of the court. The following was attached to the bond:

“I am satisfied that Fred. King is good surety on any bond for the sum of $2,000.

(Signed.) G. E. PRICHETT.”

No motion was made to set aside or amend the bond, but on or about the first day of March, 1878, the following was filed in the district court of Washington County:

“ The State Bank of Nebraska v. John H. Green et al.

To the Clerk of said Court:

Please issue an execution directed to the sheriff of Douglas County, for the deficiency in the above case, being deficiency found due by the order confirming the sale herein.”

Which was signed by the plaintiff's attorney, to which was appended the following:

“We hereto consent to the above request being complied with by the clerk of said court.”

Which was signed by Green's attorneys.

Upon this request and waiver being filed with the clerk of the district court of Washington County, an execution for the sum of $9,944.73 deficiency was issued to the sheriff of Douglas County, and levied upon certain real estate of Green, but for want of time to advertise, it was returned without a sale having been made. Several orders of sale were issued, and returned after said day without a sale being had. But on the seventh day of October, 1878, said real estate was sold under said levy, upon an order of sale, and the sale was confirmed on the sixth of the following November. Green resisted the confirmation of the sale, and “asked to have the execution heretofore issued in said cause, and the order of sale upon which said real estate was sold, be each set aside, for the reason that at the time of the issue of said writs there was on file in said cause a good and sufficient supersedeas bond as provided by law.” From the order confirming the sale, the defendant Green appeals to this court.

The appellee contends, that the supersedeas bond did not stay the execution-- First, because no appeal was taken; second, because the bond was not such as is required by the law.

Section 1 of the act “to provide for appeals in actions in equity,” Gen. Stat. 716, provides, that “the party appealing shall, within six months after the date of the rendition of the judgment or decree, or the making of the final order, procure from the clerk of the district court, and file in the office of the clerk...