Ashpole v. Hallgren

82 N.W. 623, 60 Neb. 196, 1900 Neb. LEXIS 127

• Court: Nebraska Supreme Court
• Decided: May 2, 1900
• Docket: No. 9,217
• Status: Published

Opinion

Norval, C. J.

This appeal is prosecuted from an order confirming the sale of real estate under a mortgage foreclosure. The first point made in the brief of appellants is that there is no decree, and without one there can be no valid sale. This objection is made for the first time in this court, which is too late. Toscan v. Devries, 57 Nebr., 276. Moreover, the record fails to show that a decree of foreclosure was not rendered. It is true no copy of the decree is before us, but the certificate of the clerk of the trial court attached to the transcript does not show that the entire record was brought to this court. Error is never presumed, but must be made to appear affirmatively. What has been said applies to the second objection made against the sale, namely, that there is no finding of the several amounts claimed to be due. This objection is therefore overruled.

The following points are argued in the brief of appellants for vacating the sale:

1. The interest of Frank Hallgren, and others, and not that of the owner of the premises, was appraised.

2. A copy of the affidavit of publication of the notice of sale is not attached to the sheriff’s return on the order of sale.

3. The appraisement is signed by the sheriff, while his deputy certifies that the appraisers were called and sworn by him.

á. The sheriff’s return and deputy’s certificate contradict each other.

5. No notice was given defendants of the time the premises were to be appraised.

These objections were not brought to the attention of the trial court before confirmation, and are not available here. We are mindful of the fact that one of the objections to the sale made below was that the notice of sale was published only twenty-eight days, but this was insufficient to challenge the attention of thé district court to the point that a copy of the affidavit of publication of the sale notice was omitted from the return of the sheriff. The appeal has doubtless accomplished the purpose of the appellants, and no error appearing of record, the order of confirmation is

Affirmed.