The following opinion on rehearing was filed November 5,1903. Judgment of affirmance adhered to:
Barnes, C.The opinion written by Commission Ames in this case, by which the judgment of the trial court was affirmed, was *554approved by tbe court and filed on April 9, 1908. A rehearing was allowed, and the case is noAV before us for the second time. The plaintiff in error, by this suit, sought to recover a judgment against the defendant Abrams, as clerk of the district court of Antelope county, together Avith the sureties on his official bond, for money which he alleged had been paid into court under a decree of foreclosure in which he was the plaintiff. The sureties denied the execution and delivery of the bond, as Avill appear from the facts stated in our former opinion. It is noAV contended
1. That so much of that opinion as held that the production of an alleged official bond from the proper official custody, together Avith the record of its approval, are not sufficient evidence of its execution, is not a correct statement of the law. A re-examination of -that question only serves to strengthen our belief in the correctness of this rule of law. In the case of Holt County v. Scott, 53 Neb. 176, we held that “the fact that an official bond has been approved does not of itself constitute or- evidence the delivery and acceptance of the bond.” It is further stated in the opinion therein (p. 198) that “if the bond is appiwed, this fact also shows that the investigation has disclosed everything to be satisfactory, but the approval does not constitute or evidence a delivery and an acceptance.” We are thus fully committed to the doctrine complained of. Indeed, it would seem that there should be no question about this. It can not be contended that Avhere the execution and delivery of an official bond is squarely denied by those sought to be charged thereby as sureties, its mere production, without any proof whatever of its execution .and delivery, is sufficient evidence of such fact to bind such sureties. In such a case it Avould be incumbent upon the person seeking to recover upon the bond to first introduce some competent evidence of the fact of its execution and delivery, before the bond itself could be received in evidence. We are aware of-.no case Avhich holds a contrary doctrine. But it is contended *555in this case that because a certified copy of what purported to be the official bond on which a recovery was sought was introduced in evidence, the rule above stated can not be invoked. In other words, counsel insists that section 408 of our Code of Civil Procedure, in effect, makes the certified copy of an instrument of greater probative force than the original instrument, itself. It is contended, in effect, that a certified copy of any instrument which by authority of law is to be filed or kept in any public office, may be introduced in evidence; and when so introduced, although the execution of the original, of which it is a copy, is denied, it becomes prima, facie evidence of such execution, and dispenses with the necessity of any proof thereof. We can not approve of this doctrine. The effect of the statute in question is to authorize the introduction of a certified copy of an instrument in place of the original, and make it of equal -credibility therewith. It does not purport to make it of any greater probative force, nor is it intended thereby to dispense with any of the formal proofs necessary to establish the execution of an original instrument when such execution is denied.
In Spielman v. Flynn, 19 Neb. 342, it was held that a certified copy of the reporter’s notes taken at a former trial was admissible in evidence under a stipulation; that the testimony of the witness taken at the first trial should be read in evidence in the second trial without calling such witness.
In Hall v. Aitkin, 25 Neb. 360, it is stated that in a case of foreclosure of a chattel mortgage, "where such foreclosure was not resisted, nor the authority of the mortgagee questioned, a certified copy would not be necessary, and that the original mortgage on file would be sufficient to justify the proceeding when collaterally attacked. The validity of the mortgage in that case was not questioned, and on page 363 of the opinion we find the statement “that a certified copy of the chattel mortgage which had attached thereto the proper certificate, was properly introduced in evidence under section 408 of the Code of Civil Procedure.”
*556In First Nat. Bank of Wilber v. Ridpath, 47 Neb. 99, the court said that “a mortgage properly certified to by the county clerk as a copy of the instrument on file in his office, was competent evidence under section 408 of the Code.” But in that case the execution of the mortgage was not in question.
In the case of Equitable Building & Loan Ass’n v. Bidwell, 60 Neb. 169, it was held that a certified copy of the articles of incorporation of a building and loan association was primary proof of the right of such association to transact business.
In Clough v. State, 7 Neb. 820, we said that a certified copy of the stenographer’s report of the trial might be introduced in evidence.
In Brownell v. Fuller, 54 Neb. 586, it was held that “in cases where the clerk of the district court is authorized to settle bills of execeptions, the act may be performed by a deputy, it not being shown that the principal is absent,” and leave was given to file an affidavit, which it was claimed was not properly made a part of the bill of exceptions.
In Missouri P. R. Co. v. Baier, 37 Neb. 235, the question was as to the admissibility of a certified copy of the letters of administration issued under the order of the county court. It was held that such copy was admissible under section 408 of the Code of Civil Procedure. These are the cases decided by this court which are cited by counsel in support of his contention, and it will be observed that in none of them was the direct question involved herein under consideration. Many cases from other jurisdictions are cited in support of this contention, but none of them touch the point under consideration, and it may be conceded that all of them state the law correctly, yet they do not go to the extent of holding that a certified copy of an instrument has any more probative force than the original. We, therefore, adhere to the rule as heretofore stated.
It is further urged that a certified copy of the official *557bond was actually received in evidence. This is true, as disclosed by the record, and yet it was insufficient to prove the execution and delivery of the original bond on which the action was brought, and it was not sufficient to sustain a judgment against the sureties under the issues in this case.
2. The plaintiff further contends that so much of our opinion as holds that the sheriff malting a judicial sale of real property is the sole custodian to the fund derived from such sale, between the date thereof and the date of confirmation, and upon the happening of the latter event it is his duty to pay the money to the person or persons entitled thereto, is erroneous. We adhere to this statement, because it is in direct conformity to the statute relating to such sales.
It is further contended, under this subdivision, that when the sheriff paid the money to the clerk of the court, the principal defendant herein, notwithstanding the statute, the clerk received the money by virtue of his office; in other words, '.that there was a payment into court, and the clerk, together with the sureties on his bond, became charged with the duty of accounting for and paying the money over to the plaintiff. The rehearing in this case was granted because the court was in some doubt as to whether or not the opinion was correct on this point.' But for the reason that our former judgment must be adhered to upon other grounds, it is unnecessary to further consider this point.
3. It is contended that when the principal defendant, Abrams, made his tender in court, he thereby acknowledged the indebtedness. This doctrine is not questioned in our opinion, but it is stated therein that such tender does not impair the defense of the sureties. We think this is a correct statement of the law. The sureties were making separate defenses for themselves, while the principal was defending for himself alone, and his tender would not bind the sureties unless they participated therein. Again, such tender, so far as Abrams was cop*558cerned, only admitted that he had received the money and was liable for it as bailee.
4. There is another reason why we should adhere to our former decision, which is that the record is silent as to whether or not the judicial sale, under which the money sought to be recovered was paid to the sheriff or the clerk, was ever confirmed. Without proof of confirmation, the plaintiff in a foreclosure suit is not entitled to recover the money bid at the sale, no matter in Avhose hands it may be. In Trompen v. Hammond, 61 Neb. 446, it was held that before a plaintiff can recover the proceeds of a judicial sale on his decree, he must show his right thereto by proving the confirmation of the sale by the court. Tfiat this is a correct statement of the law there can be no doubt: The sale in this case amounted to nothing more than a bid or offer to purchase the land, an acceptance thereof by the sheriff, and a payment of the money into his hands to aAvait the approval of the court. Without such approval and a confirmation of the sale, it Avould be the duty of a sheriff to return the money to the bidder; and until the sale was confirmed by the court, and the sheriff ordered to make a deed to the purchaser, the. plaintiff Avas not entitled to the money, or any part of it.
It follows that the judgment of the district court was right, and should be affirmed, and we therefore recommend that our former decisión be adhered to.
G-lanville and Albert, CC., concur.By the Court: For the reasons stated in the foregoing opinion, our former judgment is adhered to.
Former judgment adhered to.