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55 Neb. 445

Mills v. Hamer

Nebraska Supreme Court

Decided June 23, 1898

Nebraska Supreme Court · decided 1898-06-23

<p>1. Judicial Sales: Objections to Conelrmation. It is no valid ground of objection to confirmation of sale that the' defendants were not notified of the issuance of the order of sale and of the meeting of the appraisers. Sullivan, J., dissenting.</p> <p>2. —:—: Objections to Appraisement. Objections to the appraisement of real property under a decree of foreclosure must be made prior to the sale by a motion to vacate the appraisement.</p> <p>3. Review Without Bill of Exceptions. The finding of the trial court-on a question of fact cannot be reviewed in the absence of a bill of exceptions preserving the evidence upon which such decision was made.</p>

Relies on Vought v. Foxworthy · Burkett v. Clark · Ecklund v. Willis

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1898-06-23

How this case has been cited

Cited by 7 later decisions — most recently January 1915

7 state decisions

40189819001910decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Norval, J.

¶1Tbis is an appeal by the defendants from an order confirming tbe sale of their property made under a decree of foreclosure.

¶2It is urged that no notice was given the defendants of the issuance of the order of sale and of the meeting of the appraisers-. The statute requires no such notice to be given, and to hold that the sale is erroneous for want of such notice would be the rankest kind of judicial legislation. It is no valid ground for setting aside the sale that no notice of the time of making the appraisement was given the defendants. (Smith v. Foxworthy, 39 Neb. 214; Iowa Loan & Trust Co. v. Stimpson, 53 Neb. 536.)

¶3It is insisted that the appraisers-made an error in deducting the amount of taxes against the property, that the interest of defendants on each quarter section was *446not separately appraised, and also that Louis S. Deets, one of the appraisers, was prejudiced against tbe defendant Hamer. These objections cannot be considered, for the very good reason the appraisement was not assailed on either of those grounds prior to the sale. It is an inflexible rule that objections to an appraisement of property under a decree of foreclosure must be filed in the district court prior to the sale. (Vought v. Foxworthy, 38 Neb. 790; Smith v. Foxworthy, 39 Neb. 214; Ecklund v. Willis, 42 Neb. 737; Burkett v. Clarke, 46 Neb. 466; Kearney Land & Investment Co. v. Aspinwall, 45 Neb. 601; Overall v. McShane, 49 Neb. 64.)

¶4The objection that the appraisement was so low as to constitute a fraud upon the rights of the defendants is without merit, since the evidence adduced on the hearing, if any, has not been preserved by a bill of exceptions. Every presumption is in favor of the correctness of the decision of the trial court until the contrary is shown.

¶5AFFIRMED.

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