Siwooganock Guaranty Savings Bank v. Feltz

Nebraska Supreme Court

Siwooganock Guaranty Savings Bank v. Feltz

121 N.W. 967, 84 Neb. 706, 1909 Neb. LEXIS 256

CourtNebraska Supreme Court

DecidedJune 11, 1909

DocketNo. 15,738

StatusPublished

This text of 121 N.W. 967 (Siwooganock Guaranty Savings Bank v. Feltz) 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

Siwooganock Guaranty Savings Bank v. Feltz, 121 N.W. 967, 84 Neb. 706, 1909 Neb. LEXIS 256 (Neb. 1909).

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Opinion

Fawcett, J.

The only question involved in this case is the correctness of the judgment of the district court in confirming the sale in a suit involving the foreclosure of certain mortgages. The only party complaining here is the owner of the lands covered by the foreclosure. The validity of the decree of foreclosure is not questioned and could not be by the owner as he availed himself of the statutory stay after decree. Upon the expiration of the stay, an order of sale was issued and the property appraised at $6,000. It was offered twice, and not sold for want of [707]*707bidders, due return of which was made by the sheriff. A second order of sale was issued, and the same sheriff, together with one of the first appraisers. and one new appraiser, appraised the property at the sum of $3,280. The second order of sale was issued September 20, 1907, and the sale made November 12,1907. No objection was made to the appraisement by any one until December 19, 1907, when the defendant owner filed the following objections to the confirmation: “Comes now defendant Firmin Q. Feltz and objects to the confirmation, of sale heretofore made for the following reasons: (1) The appraisal on which said sale was made was too low. (2) Because no return Avas made to order of sale dated September 20, 1907. (3) Because it does not appear that said property was offered twice for sale under the appraisement dated April 30, 1907, at which appraisal said property Avas appraised at $6,000. (4) Because the appraisement on AArhich said land Avas sold does not fix or appraise interest of Firmin Q. Feltz in property.” These being the only objections made in the court beloAV, they are the only ones that can be considered here.

Objection No. 1 must fail for the reason that the objection was not made prior to the sale. Mills v. Hamer, 55 Neb. 445.

Objection No. 2 must fail, as the record shows that a return of the order of sale, dated September 20, 1907, was made on December 19, 1907. The fact that the return of sale was not filed untii more than 60 days after its issuance by the cleric did not invalidate it. Amoskeag Savings Bank v. Robbins, 53 Neb. 776.

Objection No. 3 must yield to the record, Avhich shows that the property was offered twice for sale before any attempt was made to reappraise and sell the same.

Objection No. 4 must fail because the failure of the sheriff to appraise the interest of the owner of the property was without prejudice, for the reason that no deductions whatever were made from the total appraised value as fixed by the appraisers on the second appraisal. [708]*708When no deductions are made from tlie appraised value, there is no necessity for separately finding the value of the interest of the owner, as the value of such interest would necessarily be the same as the appraised value.

The objections taken by defendant being all without merit, the judgment of the district court is

Affirmed.

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Fawcett, J.

The only question involved in this case is the correctness of the judgment of the district court in confirming the sale in a suit involving the foreclosure of certain mortgages. The only party complaining here is the owner of the lands covered by the foreclosure. The validity of the decree of foreclosure is not questioned and could not be by the owner as he availed himself of the statutory stay after decree. Upon the expiration of the stay, an order of sale was issued and the property appraised at $6,000. It was offered twice, and not sold for want of [707]*707bidders, due return of which was made by the sheriff. A second order of sale was issued, and the same sheriff, together with one of the first appraisers. and one new appraiser, appraised the property at the sum of $3,280. The second order of sale was issued September 20, 1907, and the sale made November 12,1907. No objection was made to the appraisement by any one until December 19, 1907, when the defendant owner filed the following objections to the confirmation: “Comes now defendant Firmin Q. Feltz and objects to the confirmation, of sale heretofore made for the following reasons: (1) The appraisal on which said sale was made was too low. (2) Because no return Avas made to order of sale dated September 20, 1907. (3) Because it does not appear that said property was offered twice for sale under the appraisement dated April 30, 1907, at which appraisal said property Avas appraised at $6,000. (4) Because the appraisement on AArhich said land Avas sold does not fix or appraise interest of Firmin Q. Feltz in property.” These being the only objections made in the court beloAV, they are the only ones that can be considered here.

Objection No. 1 must fail for the reason that the objection was not made prior to the sale. Mills v. Hamer, 55 Neb. 445.

Objection No. 2 must fail, as the record shows that a return of the order of sale, dated September 20, 1907, was made on December 19, 1907. The fact that the return of sale was not filed untii more than 60 days after its issuance by the cleric did not invalidate it. Amoskeag Savings Bank v. Robbins, 53 Neb. 776.

Objection No. 3 must yield to the record, Avhich shows that the property was offered twice for sale before any attempt was made to reappraise and sell the same.

Objection No. 4 must fail because the failure of the sheriff to appraise the interest of the owner of the property was without prejudice, for the reason that no deductions whatever were made from the total appraised value as fixed by the appraisers on the second appraisal. [708]*708When no deductions are made from tlie appraised value, there is no necessity for separately finding the value of the interest of the owner, as the value of such interest would necessarily be the same as the appraised value.

The objections taken by defendant being all without merit, the judgment of the district court is

Affirmed.

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Bluebook (online)

121 N.W. 967, 84 Neb. 706, 1909 Neb. LEXIS 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/siwooganock-guaranty-savings-bank-v-feltz-neb-1909.

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