Aultman & Taylor Co. v. Howe

10 Neb. 8

• Court: Nebraska Supreme Court
• Decided: January 15, 1880
• Status: Published

Opinion

Maxwell, Ch. J.

In February, 1879, the plaintiffs recovered a judgment against the defendant in the county court of Lancaster county, for the sum of $470.41, and $81.54 costs of suit. A transcript of the j udgment was thereupon filed in the office of the clerk of the district court, and an execution issued thereon, which was levied upon certain lands belonging to the defendant, which were sold under said execution and purchased by the plaintiffs for the sum of $400. Upon the sale being reported to the court the plaintiffs filed a motion to confirm the same, and while,the motion was pending the defendant filed a motion to set the same aside because said lands were owned and occupied by defendant as a homestead. The motion to set the sale aside was sustained, to which ruling the plaintiff excepted, and now brings the cause into this court by petition in error.

A number of affidavits certified by the clerk of the district court, but not included in a bill of exceptions, are presented for our consideration upon the assurance that they were used on the hearing of the motions in the court below. Such affidavits cannot be considered. This court has already decided that affidavits not properly a part of the record can only be made such by being embodied in a bill of exceptions. Ray v. Mason, 6 Neb., 101. Credit Foncier of America v. Rogers, 8 Id., 34.

A mere certificate of the clerk of the district court that certain affidavits were used on the hearing in the court below is not such an authentication as is required by the statute. A bill of exceptions must, except in case of the death of the judge after the exceptions are taken, be signed by a judge of the district court, and if not so signed cannot be considered. There being no bill of exceptions, and no evidence before this court, there is nothing in the record to show that the court erred in setting aside the sale.

Under the act approved Eeb. 19, 1877, a homestead is liable “for taxes accruing thereon, and if plotted as required by law is only liable for such taxes, and subject to mechanics’ liens for work, labor, or materials done or furnished exclusively for the improvement of the same, and may be sold for debts created by written contract executed by persons having the power to convey, and expressly stipulating that the homestead is liable therefor, but it shall not in such ease be sold except to supply the deficiency remaining after exhausting the property pledged for the payment of the debt in the same written contract.” Laws 1877, pages 34-5.

*

Section 9 of the act provides that “the owner, or the husband or wife, may select the homestead and cause it to be marked out, platted, and recorded, * * * a failure in this respect does not leave the homestead liable, but the officer having an execution against the property of a defendant may cause the same to be marked off, platted, arid recorded,” etc. It is clear from these provisions that a homestead under the act of Eeb. 19, 1877, is not liable to sale upon execution, and in case the same is not platted and recorded it is the duty of the officer to plat the same before selling any portion of the premises of which the homestead is a part; and a failure to do so will render the sale invalid. White v. Rowley, 46 Iowa, 680. Linscott v. Lamart, Id., 312. As there is no erior in the record, the judgment of the district court is affirmed.

Judgment ahetrmbd.

Since repealed, Laws 1879, 61.