Anschutz v. Steinwand

• Court: Kansas Supreme Court
• Writing for the Court: MASON, J.:
• Citation: Anschutz v. Steinwand, 97 Kan. 89, 154 P. 252 (Kan. 1916)
• Decision Date: 08 January 1916
• Docket Number: 19,842
• Parties: CHRISTIAN ANSCHUTZ v. FREDERICK STEINWAND and MARGARET STEINWAND, Appellants, and HENRY EBEL, Appellee, et al

154 P. 252

97 Kan. 89

CHRISTIAN ANSCHUTZ v. FREDERICK STEINWAND and MARGARET STEINWAND, Appellants, and HENRY EBEL, Appellee, et al

No. 19,842

Supreme Court of Kansas

January 8, 1916

Decided, January, 1916.

Appeal from Logan district court; JACOB C. RUPPENTHAL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

EXECUTION SALE--Mistake by Plaintiff's Attorney--Sale Properly Set Aside. Evidence that a client authorized his attorney to bid for him at a sheriff's sale $ 300 for a tract of land, subject to a mortgage of $ 1100, and that the attorney telegraphed an offer of $ 300 "over" the mortgage, warrants a district court, in the exercise of a sound discretion, and to promote substantial justice, in setting aside a sale returned as having been made for $ 1400.

C. A. Spencer, of Oakley, for the appellants.

George W. Holland, of Russell, for the appellee.

OPINION

MASON, J.:

In October, 1912, Henry Ebel obtained in the district court of Logan county personal judgments, for $ 2237.20 and $ 803.06, against Frederick and Margaret Steinwand, which were decreed to constitute a first lien against the northwest quarter of one section of land, and a second lien against the southwest quarter of another. An order of sale was issued on which a sale was made on October 24, 1913. The sheriff's return showed the sale of both tracts to Ebel, the northwest quarter for $ 2100, and the southwest for $ 1400. On April 30, 1914, on Ebel's motion an order was made confirming the sale. On July 6, 1914, Ebel filed a motion asking that the order of confirmation and the sale be set aside. This motion was heard on the same day, and allowed. From this order the Steinwands appeal.

The terms of court in Logan county begin on the fourth Tuesdays of April and October. (Laws 1913, ch. 175, § 1.) The decree of confirmation was therefore set aside at the same term at which it was rendered. The court consequently had a wide discretion in determining whether the matter should be reopened. ( Hemme v. School District, 30 Kan. 377, 1, 1 P. 104 P. 104.) Its decision that there should be a further inquiry is not open to review, and the question before us is whether error was committed in the final refusal to confirm the sale.

Evidence was given to this effect: Ebel's attorney had instructions from his client to bid $ 300 for the southwest quarter, subject to a prior mortgage for $ 1100; he telegraphed to the sheriff authorizing a bid of $ 300 "over" the first mortgage, using the quoted word erroneously for "subject to." The appellants contend that the evidence...