Stratton v. Reisdorph

• Decision Date: 28 September 1892
• Citation: 35 Neb. 314,53 N.W. 136
• Parties: STRATTON v. REISDORPH ET AL.
• Court: Nebraska Supreme Court

35 Neb. 314

53 N.W. 136

STRATTON

v.REISDORPH ET AL.

Supreme Court of Nebraska.

Sept. 28, 1892.

Syllabus by the Court.

1. In a notice of sale of real estate under a decree of foreclosure, while it is proper to state the amount of the decree, such statement is not essential to the validity of the notice.

2. In a foreclosure proceeding the holder of a prior mortgage is not a necessary party.

3. In a foreclosure proceeding, where the holder of a prior mortgage is not made a party, it is not necessary for the court to find the amount due on such mortgage, since the holder, not being a party to the suit, will not be concluded thereby, and the provisions of the Code for the ascertainment of prior liens by the appraisers are adequate to preserve the rights of the mortgagor, or others standing in the same relation to the mortgaged property.

4. Where parties have been personally served with summons, and make an appearance in a suit to foreclose a mortgage, they cannot afterwards, to defeat confirmation, assail the decree for a mere irregularity.

Appeal from district court, Saunders county; MARSHALL, Judge.

Action by Samuel Stratton against Francls E. Reisdorph and others to foreclose a mortgage. There was a decree of foreclosure, and defendants appeal from an order confirming the sale of the land. Affirmed.David Van Etten and O. C. Tarpenning, for appellants.

T. B. Wilson and Reese & Gilkeson, for appellee.

POST, J.

This is an appeal from an order of the district court of Saunders county confirming the sale of certain real estate under an order of sale issued upon a decree of foreclosure. The appellants, who were defendants below, filed answer in the district court, but a demurrer thereto was sustained. To this ruling, appellants took no exception, and pleaded no further. An order of sale was issued April 23, 1890, under which the sheriff sold the land, making his return June 3d following, on which day the preliminary order to show cause against the confirmation of sale was made. On the 4th day of June, certain objections and exceptions to the sale were filed, and on the next day the order of confirmation was entered. From this order defendants appeal. The first objection is that the notice of sale is insufficient, because it does not state the amount of the decree nor any amount. An examination of the notice, as published, shows that it complies with all of the provisions of the statute. There is no requirement that the notice shall contain a statement of the amount found due by the decree. That is a matter of public record. The notice refers to the decree and the order of sale. This is sufficient. The next contention is that the sheriff had no authority to sell subject to the mortgage of the Lombard Investment Company, inasmuch as there was no finding of the amount due thereon. This is, in effect, an attack upon the decree, as it is therein found that the Lombard Investment Company has a prior lien, and an order is awarded for the sale of the property...