Bostwick v. Keller

Nebraska Supreme Court

Bostwick v. Keller

87 N.W. 1060, 62 Neb. 815, 1901 Neb. LEXIS 296

CourtNebraska Supreme Court

DecidedNovember 20, 1901

DocketNo. 10,484

StatusPublished

This text of 87 N.W. 1060 (Bostwick v. Keller) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bostwick v. Keller, 87 N.W. 1060, 62 Neb. 815, 1901 Neb. LEXIS 296 (Neb. 1901).

Pincite

Opinion

Norval, O. J.

From an order of the district court confirming a sale of real estate made under a decree foreclosing a real estate mortgage, the defendants appeal.

It is urged that no copy of the appraisement was filed by the sheriff in the office of the clerk of the district court. The officer is required forthwith to file a copy of the appraisement, and prior to the publication of the notice of sale. Kearney Land & Investment Co. v. Aspinwall, 45 Nebr., 601; Burkett v. Clark, 46 Nebr., 466; Walker v. Patch, 52 Nebr., 763; First Nat. Bank of Broken Bow v. Hamer, 51 Nebr., 23; Globe Loan & Trust Co. v. Wood, 58 Nebr., 395. Therefore, if it appears from the record before us that no copy of the appraisement was ever filed, the sale for that reason would have to be set aside. Unfortunately for the defendants, this record does not so show. It is true no transcript.of any copy of the copy of appraisement is to be found in the record, but that proves nothing. The transcript does not purport to be a full and complete copy of the records and files of the lower court. On the other hand, the return of the officer, which we find in the record, states that after the appraisement was made he forthwith deposited a copy thereof in the' office of the clerk of the district court of said county.. This is not overcome by the mere silence of the record upon the subject: The presumption is that the officer did his duty; especially is this true when his return shows he has done so.

That the appraisement was not made upon actual vieAv of the premises does not vitiate the sale. The statute does not require that the appraisers should be on the lands at [817]*817the time they make the appraisement, although it is better that they view the premises, as ordinarily it would enable them the more intelligently to perform their duties, as the appraiser must be familiar Avith the premises.

The order complained of is

Affirmed.

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Norval, O. J.

From an order of the district court confirming a sale of real estate made under a decree foreclosing a real estate mortgage, the defendants appeal.

It is urged that no copy of the appraisement was filed by the sheriff in the office of the clerk of the district court. The officer is required forthwith to file a copy of the appraisement, and prior to the publication of the notice of sale. Kearney Land & Investment Co. v. Aspinwall, 45 Nebr., 601; Burkett v. Clark, 46 Nebr., 466; Walker v. Patch, 52 Nebr., 763; First Nat. Bank of Broken Bow v. Hamer, 51 Nebr., 23; Globe Loan & Trust Co. v. Wood, 58 Nebr., 395. Therefore, if it appears from the record before us that no copy of the appraisement was ever filed, the sale for that reason would have to be set aside. Unfortunately for the defendants, this record does not so show. It is true no transcript.of any copy of the copy of appraisement is to be found in the record, but that proves nothing. The transcript does not purport to be a full and complete copy of the records and files of the lower court. On the other hand, the return of the officer, which we find in the record, states that after the appraisement was made he forthwith deposited a copy thereof in the' office of the clerk of the district court of said county.. This is not overcome by the mere silence of the record upon the subject: The presumption is that the officer did his duty; especially is this true when his return shows he has done so.

That the appraisement was not made upon actual vieAv of the premises does not vitiate the sale. The statute does not require that the appraisers should be on the lands at [817]*817the time they make the appraisement, although it is better that they view the premises, as ordinarily it would enable them the more intelligently to perform their duties, as the appraiser must be familiar Avith the premises.

The order complained of is

Affirmed.

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Bluebook (online)

87 N.W. 1060, 62 Neb. 815, 1901 Neb. LEXIS 296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bostwick-v-keller-neb-1901.