The sole question presented by this record arises under section 5177, Rev. Laws 1910, which provides:
"* * * In all cases where real estate has been or may hereafter be taken on execution and appraised and twice advertised and offered for sale, and shall remain unsold for the want of bidders it shall be the duty of the court from which such execution issued, on motion of the plaintiff, to set aside such appraisement and order a new one to be made. * * *"
The original judgment was rendered September 23, 1911, and an order of sale was issued, and the property under foreclosure was appraised. Subsequent to such appraisement the defendants filed a motion to vacate or modify the judgment and, pending the hearing on this motion, the order of sale was returned unsatisfied. The motion was sustained by the elimination of $841.12 from the amount of the original judgment, and an order of sale was issued on this judgment August 31, 1912, and a new appraisement made. At the sale the property was bought in by the American National Bank, and the sale confirmed. Objection was made to the confirmation on the ground that the sale was void, because the premises had not been offered for sale twice and the appraisement set aside by order of court, as provided by section 5177, supra, and in support of their contention the plaintiffs in error have cited the following cases: Kline etux. v. Camp et al., 49 Kan. 114, 30 P. 175; Burkett et al. v.Clark, 46 Neb. 466, 64 N.W. 1113; Beardsley v. Higman,58 Neb. 257, 78 N.W. 510. It is conceded by the plaintiff that these authorities, construing similar statutes, would be applicable were it not for the fact that said section presupposes a valid subsisting judgment, a valid *Page 347 execution, and a valid appraisement, and, inasmuch as the judgment in this case was invalid to the extent of $841.12, any proceeding looking to a sale of said premises upon execution issued thereunder was also invalid, and therefore there could be no valid appraisement. In this argument we concur. The judgment upon which the second execution was predicated was not the same judgment originally entered. It had been declared invalid to the extent of $841.12, and that portion was vacated and set aside. A sale under the first execution could not have been confirmed, as the foundation for an execution is the judgment of the court, and when this foundation is removed or destroyed, the execution and appraisement must fall with it.
The judgment of the lower court is therefore affirmed.
ON PETITION FOR REHEARING.