Globe Loan & Trust Co. v. Wood

78 N.W. 721, 58 Neb. 395, 1899 Neb. LEXIS 197

• Court: Nebraska Supreme Court
• Decided: April 6, 1899
• Docket: No. 8856
• Status: Published

Opinion

Harrison, C. J.

An appeal has been perfected herein from an order of confirmation of a sale of real estate made pursuant to a decree of foreclosure of a mortgage. Objections were made to the appraisal, also the confirmation of the sale. On hearing, the objections were overruled and a motion to confirm the sale was sustained and the order appealed from was entered. One objection interposed to the appraisal was that no certificates of the proper officers in regard to the liens which were deducted as incumbrances were obtained a'nd filed as required by law. Section J91tZ of the Code of Civil Procedure provides: “The officer holding such appraisement shall forthwith deposit a copy thereof, including his application to the officers enumerated in section three of this act, and their official certificates as in said section provided, in the office of the clerk of the court from which such execution issued.” The requirements of the portion of the section of the Code just quoted are mandatory, and a non-compliance therewith may furnish canse for setting aside an order of confirmation of a sale and the sale. If liens are deducted in making the appraisement, the certificates should be obtained and filed as required, prior to the advertisement of the sale. (Burkett v. Clark, 46 Neb. 466; First Nat. Bank of Broken Bow v. Hamer, 51 Neb. 23; Reuland v. Waugh, 52 Neb. 353; Walker v. Patch, 52 Neb. 763.)

There were other objections to the appraisal, and to confirmation of the sale presented in the district court which are argued here, but Ave do not deem their discussion essential at this time. For the i*eason indicated herein the order of confirmation is reversed and the cause remanded. The sale should be vacated.

Reversed and remanded.