Eldredge v. Aultman.

To the petition the plaintiffs in error, defendants below, filed a general demurrer, which was overruled by the court, and they electing to stand upon their said demurrer, judgment was rendered against them and in favor of plaintiff below in accordance with the prayer of the petition.

Counsel in the brief of the plaintiffs in error assumes that this is an action to revive dormant judgments, and argues therefrom that, as the original judgments were obtained in Fillmore county, proceedings to revive them must be brought in that county and in the court in which they were rendered; therefore the district court of Lancaster county had no jurisdiction of the subject-matter. No such question was presented to the court below; besides counsel is in error in supposing that this is an action of revivor. This is in no sense such a proceeding. The object and purpose of the suit is to recover a new judgment for the amount due and unpaid on the original judgments described in the petition. Hence it is unnecessary to decide whether an action to revive a judgment can be brought in a county other than that in which the judgment was rendered.

The sole question presented for decision is: Can a suit be maintained on a judgment recovered in this state? At common law an action lies on a domestic judgment, and there is no statutory provision in this state which takes. away that right. True, a domestic judgment may be enforced by execution, but such remedy is not exclusive. It is merely cumulative. A judgment, whether foreign or domestic, is a debt of a high order, and a recovery may be had upon it as upon any other contract. While there is some conflict in the decisions, the proposition stated is sustained by the great weight of authority in this country. (Black, Judgments, sec. 958; Mc Donald v. Butler, 3 Mich., 558; Headley v. Roby, 6 O., 521; Burnes v. Simpson, 9 Kan., 658; Hummer v. Lamphear, 32 Id., 439; Ames v. Hoy, 12 Cal., 11; Stuart v. Lander, 16 Id., 372; David

Miller v. Lanham.

son v. Nebaker, 21 Ind., 334; Becknell v. Becknell, 110 Id., 42; Greathouse v. Smith, 4 Ill., 541; Denison v. Williams, 4 Conn., 402; Ives v. Finch, 28 Id., 112; Kingsland & Co. v. Forrest, 18 Ala., 519; Elliott v. Holbrook, 33 Id., 659; Church v. Cole, 1 Hill [N. Y.], 645; Wilson v. Hatfield, 121 Mass., 551; Stewart v. Peterson's Executors, 63 Pa. St., 230; Haven v. Baldwin, 5 Ia., 503; Simpson v. Cochran, 23 Id., 81; Thomson v. Lee County, 22 Id., 206.)

It follows from what has been said that the petition states grounds for action, and that the court did not err in overruling the demurrer. The judgment is

THE other judges concur.

AFFIRMED.

35 886

55 444

35 886

60 8

THEODORE H. MILLER, APPELLEE, V. JOHN LANHAM,

APPELLANT, ET AL.

[FILED DECEMBER 20, 1892.]

1. Judicial Sales: INADEQUACY OF PRICE: CONFIRMATION. Evidence examined, and held, that the value of property sold by virtue of a decree of foreclosure is not so greatly in excess of the value found by the appraisers as to call for the setting aside of the sale.

2.

3.

: HARMLESS ERROR. A sale will not be set aside for irregularities or errors not prejudicial to the party complaining.

:

FAILURE OF PURCHASER TO PAY OFF PRIOR LIENS. A sale will not be set aside on the motion of a mortgagor on the ground that the purchaser has not paid off claims adjudged to be prior liens upon the property sold.

: NOTICE: DESCRIPTION OF PROPERTY. A notice of sale under a mortgage or decree will generally be held sufficient if the property be described as in the mortgage or decree.

Miller v. Lauham.

APPEAL from the district court for Saline county. Heard below before MORRIS, J.

Abbott & Abbott, and Webster, Rose & Fisherdick, for appellant.

F. I. Foss, contra.

POST, J.

This is an appeal from an order of confirmation by the district court of Saline county. From the transcript it appears that on the 18th day of December, 1889, the appellee Miller recovered judgment against the appellant Lanham for $7,793.25 and $72.95 costs, and a decree of foreclosure against the following described property, to-wit: All of section 36, town 8, range 3 east ; a part of the northeast quarter of the northeast quarter of section 33, town 8, range 4 east, which is more particularly described in the decree and order of sale; also a part of lot 1, in block 1, in the city of Crete. On the 14th day of December, 1889, judgment was entered against appellant in favor of the Union Trust Company, of Philadelphia, for $7,545.90 and a decree of foreclosure against section 36, and which was adjudged to be the first lien thereon. On the 2d day of April, 1890, the Union Trust Company, of Omaha, recovered judgment against appellant for $600 and a decree of foreclosure against said section 36, which was adjudged to be a second lien thereon. On the 2d day of April, 1890, the First National Bank of Crete recovered a judgment against appellant for $4,348.70 and a decree of foreclosure against the property in lot 1, block 1, city of Crete, which was adjudged to be a first lien thereon and upon which there had been paid the sum of $3,172.52 prior to the issuing of the order of sale. On the 4th day of December, 1890, an order of sale was issued, by virtue of which the property above described was advertised for sale and sold

Miller v. Lanham.

to the appellee. On the return of the order of sale a motion was made by the appellant to set aside the sale, which was sustained as to the fractional part of the northeast quarter of the northeast quarter of section 33, and overruled as to section 36, and part of lot 1, block 1, in the city of Crete, as described in the decree. Exception was taken by appellant to the overruling of his motion and the case removed to this court by appeal. Said motion is as follows:

"And now comes the said defendant John Lanham, and objects to the confirmation of the sale herein heretofore had, and moves the court to set the same aside for the following

reasons:

"First-That the property sold herein was appraised far below its actual value, and so far below its value as to show fraud, collusion, partiality, or incompetency on the part of the appraisers, as is shown by the affidavits of John Lanham, Charles E. Chowins, Thomas Patz, and Jacob Wagerman hereto attached.

"Second-That the property was sold at a grossly inadequate price, in this, that the same is, and at the time of the sale herein was, well worth the sum of $27,800, and is shown by affidavits hereto attached.

"Third-That there is error and irregularity in said sale, in this, that the decree of foreclosure in said case embraces with the amount found due to the plaintiff Miller, being $7,793.75, the amount found due to the Union Trust Company, of Philadelphia, being $7,545.90, and the amount found due to the Union Trust Company, of Omaha, $600, and the amount found due to the First National Bank of Crete, Nebraska, being $4,348.70, and consolidates all these amounts into one amount, and orders that there be but one sale for all, and the order of sale herein recites all of said amounts and purports to sell the property therein described to satisfy all, while the sheriff has reported and placed on file the existence of prior incumbrances against the section of

Miller v. Lanham,

land described to the amount of $8,754.57, $8,053.70 of which is a part of the amount recited in said order of sale and is a part of the amount for which said sale was made, and therefore cannot be incumbrances prior to the amount for which the sale was being made; thus it is made to appear, by inspection of the files and proceedings in the case, that the incumbrance against said section of land is $8,053.70 greater than actually exists, and that a bona fide purchaser would reduce his bid by that much; all of which will more fully appear by an inspection of the files of this case.

"Fourth-And the defendant alleges further error and irregularity in said sale in relation to that part of lot 1, block 1, of the city of Crete, described in said proceedings, in this, that the sheriff reported and placed on file prior incumbrances against said part of lot 1, block 1, to the amount of $1,312.50, while, as a matter of fact, the said amount of $1,312.50 is that portion of said decree determining the amount due to the said bank, and for which said property was being sold, and therefore was not and could not be prior incumbrances, thus making the amount against said property appear by said proceedings to be greater by $1,312.50 than it really was, whereby the bid of a purchaser would be reduced by that amount.

"Fifth-There is further irregularity in the proceedings of said sale, in this, that no money was paid by the purchaser, Miller, to the sheriff, with which to pay the amounts due to the other beneficiaries in said decree; that in fact no money at all was paid or offered by the purchaser, Miller, at said sale to any one for any purpose.

"Sixth-That the advertisement of sale published herein was defective and misleading, in this, that the farm property offered for sale was one section by government survey; that the advertisement was such as to advise people that the said section should be sold in bulk; that if said section had been advertised and offered for sale by government subdivisions of a section, it would have sold to a much better advantage and for a larger amount.