Toscan v. Devries

Irvine, C. This is an appeal from an order confirming a sale made in pursuance of a decree of foreclosure. Confirmation was opposed because the sale ivas made by a master commissioner who had not taken and filed an oath. This [277] is the same question as was presented in Omaha Loan & Trust Co. v. Bertrand, 51 Neb. 508, and the record is in the same condition. It follows from that decision that if an oath was requisite it must be presumed that one was taken, there being'no showing to the contrary. It is next argued that the appraisers were not sworn. This argument is based on the supposed absence of an oath by the master, who undertook to administer .the oath to the appraisers. The disposition of the former question decides this one. It is objected that the appraisers did not appraise the interest of the proper persons. The appraisement is in its essential parts as follows: “We * * * do appraise the property hereinafter described, at its real money value, as the property to be sold * * * at the sum of twenty-one hundred dollars.” Then followed a statement of prior incumbrances, consisting altogether of taxes, Then followed: “The interest of Henry O. Devries et air, defendants, we value at nineteen hundred and sixty-four and 61-100 dollars.” It is evident that the value was fixed by taking the whole value of the land and deducting therefrom the taxes. As taxes, when they become liens, override all other interests there could therefore have been no deduction of liens created or attempted to be created by adverse interests, or which would not attach to the estate of the owners of the equity, and as this countervailing incumbrance was deducted from the total valuation of the land, the appraisement must have been as high as if made exclusively with regard to the interest of the appealing defendants. They cannot complain. In the briefs complaint is made that .a copy of the appraisement was not filed with the clerk until after publication of notice of sale had been commenced, and the record seems to bear out that objection. Attention of the district court was not called to this defect by the •objections to confirmation or motion to set aside the sale, It is b roost familiar rule that this court will not, [278] except for insufficiency of the petition to state a cause of action, or where there is a want of jurisdiction, entertain questions not presented to the trial court. This principle has been frequently applied both in error proceedings and appeals from orders confirming judicial and execution sales. The court will only in such case consider objections specifically made in the district court. (Johnson v. Bemis, 7 Neb. 224; Parrot v. Neligh, 7 Neb. 456; Runge v. Brown, 29 Neb. 116; Norton v. Nebraska Loan & Trust Co., 40 Neb. 895; Ecklund v. Willis, 44 Neb. 129; Hooper v. Castetter, 45 Neb. 67; Creighton University v. Mulvihill, 49 Neb. 577; Nebraska Land, Stock-Growing & Investment Co. v. Cutting, 51 Neb. 647.) It has been suggested that the statute requires the judge to examine the proceedings, and demands confirmation only after such examination has disclosed that the. sale has been made in all respects in conformity to law (Code of Civil Procedure, sec. 498); that in view of this active duty imposed on the judge, the foregoing principle ought not to apply where the defect or irregularity is apparent on the face of the record. An inspection of the foregoing cases will show that the court has never regarded such distinction. In Johnson v. Bemis one of the objections actually made in the district court was “For other reasons appearing on the face of the return.” This was held too indefinite to present any question for review. In Nebraska Land, Stock-Growing & Investment Co. v. Cutting one of the objections made in this court was the failure of the record to disclose that the sale was advertised in the proper county, and this was not considered, for the reason, among others, that it had not been made in the district court. In Hooper v. CasteMer and in Creighton University v. Mulvihill the objection made was the same as in this case, — the failure to file a copy of the appraisal before advertising, and the objection was held unavailing because not made in the district court.' The rule itself is sound and salutary, and in no way conflicts with the duty of the district judge to examine the [279] proceedings even in the absence of objection. It only means that a party cannot be heard to complain for the first time in this court of the failure of the district judge to perceive an irregularity, when the party himself has neglected to challenge his attention thereto. Some diligence is required of the suitor as well as of the judge. Affirmed.