¶1This is an appeal from a judgment of the district court of Douglas county confirming a sale of real estate made in pursuance of a decree of mortgage foreclosure. The property was appraised at $7,700, but before the sale occurred the mortgagor filed objections to the appraisement on the ground that the value placed on the property was too low, and at the same time filed a number of affidavits tending to support his motion. The record discloses no ruling of the district court on this motion, prior to the sale. The plaintiff served a notice on the mortgagor that he would, on October 12, 1895, move the court to confirm the sale. On that date the court made an order that the mortgagor show cause by the 19th of the month why the sale should not be confirmed. The mortgagor filed no additional showing against the confirmation. It was not confirmed on October 19. On the 25th, however, the plaintiff filed affidavits tending to support the appraisement made of the property by the-sheriff;- and on the 26th of said month, without any notice to the mortgagor, and in the absence of himself and counsel, the court confirmed the sale. The appellant complains because the plaintiff was allowed, after October 19, to file affidavits tending to sustain the appraisement, and that the court considered these affidavits, and made the order on the 26th in the absence of the appellant and without notice to him or his counsel. Our views are these:
¶21. The district court was not obliged to pass on the motion to confirm on October 19. It had a right to consider affidavits filed on that date, or after that date, by the plaintiff, which tended to support the appraisement; and the appellant was not entitled to be notified of the filing of such affidavits, or of the time when the court would pass on the motion. He had already filed his objections to the appraisement made.
¶32. The court should have confirmed the sale, even *63though the plaintiff had never filed an affidavit in support of the appraisement made, as that appraisement was not assailed by the appellant for fraud, and an appraisement duly made of real estate for the purpose of a judicial sale cannot be successfully attacked solely on the ground that the property had been appraised too low. To use the low valuation as a successful basis for attacking the appraisement, it must be alleged and proved that it was fraudulent. (Vought v. Foxworthy, 38 Neb. 790; Mills v. Hamer, 55 Neb. 445.) The judgment of the district court is
¶4Affirmed.