Maginn v. Pickard

Sullivan, J. This proceeding’ in error brings up for review an order of the district court confirming a judicial sale of real estate in the city of Omaha. [643] It is first contended that tlie sale should have been set aside on the ground that the valuation fixed by the appraisers was so low as to afford an inevitable inference of fraud in-the appraisement. There is considerable difference between the estimate of the appraisers and that of some of the witnesses who testified for the defendant, but the disparity is not so great as to warrant the conclusion that the appraisers acted corruptly. The ruling of the trial court on this point is fully sustained by First Nat. Bank of Omaha v. Hahn, 56 Neb. 679, Nebraska Loan & Building Ass’n v. Marshall, 51 Neb. 534, and other cases. Another contention of the defendant is that the court having directed the sheriff to execute the decree of foreclosure, the sale conducted by his deputy was unauthorized and void. The precise question was decided in Nebraska Loan & Building Ass’n v. Marshall, supra. It was there held that the deputy sheriff possesses the same power as his principal to carry into effect an order of the court directing the sale of real estate for the satisfaction of a mortgage. A further reason urged for a reversal of the order of confirmation is the failure of the appraisers to give the defendant an opportunity to appear before them and be heard on the question of valuation. The right to such a hearing was claimed and expressly denied in Tillson v. Benschoter; 55 Neb. 443, and in Mills v. Hamer, 55 Neb. 445. Complaint is made because one of the appraisers had been frequently selected by the sheriff of Douglas county to act in a like capacity in other cases. In the absence of a showing that the appraisement was unfair we fail to perceive how the defendant was prejudiced, even if it be true that the appraiser was a “professional.” To justify this court in reversing an order or judgment of the district court error must affirmatively appear; it will not be presumed. It is claimed that the notice of sale was not published in a noAvspaper of general circulation in Douglas county; [644] 'and. that the sale should be, therefore, set aside. The evidence before ns does not tend in the remotest degree to support this claim, and we cannot act on counsel’s suggestion to search the record of another case in this court for evidence to sustain his contention. Other questions presented are too attenuated to merit special consideration. The order of confirmation is Affirmed.