Citizens Loan & Sav. Co. v. Stone

• Decision Date: 23 March 1965
• Parties: , 30 O.O.2d 584 The CITIZENS LOAN & SAVINGS CO., Appellee, v. STONE et al., Appellants.
• Court: Ohio Court of Appeals

Page 551

1 Ohio App.2d 551

206 N.E.2d 17, 30 O.O.2d 584

The CITIZENS LOAN & SAVINGS CO., Appellee, v. STONE et al., Appellants.

Court of Appeals of Ohio, Second District, Madison County.

March 23, 1965.

Crabbe & Tanner, London, for appellee.

J. Harvey Crow, in pro. per.

DUFFEY, Judge.

This is an appeal from an order of the Common Pleas Court of Madison County confirming the judicial sale of property upon a mortgage foreclosure.

Plaintiff-appellee, The Citizens Loan and Savings Company, has raised the preliminary question of the existence of a final order. The resident judges of this Court of Appeals previously reduced the case from an appeal on questions of law and fact to one on questions of law only. However, the court indicated some doubt on the appealability of such an order. See the opinion of May 26, 1959. In our opinion, an order confirming a sale is a final order and appealable. Confirmation is part of the sale proceedings, and such proceedings are special proceedings to enforce a judgment or decree. Further, as to the appellant property owner, the right to retain ownership of his property is clearly a substantial right, and it is the confirmation order which operates to divest him of that right. These principles were firmly established in Reed v. Radigan (1884), 42 Ohio St. 292, and cases cited therein. See 2 Ohio Jurisprudence 2d 658, Appellate Review, Section 72.

The defendant-appellant J. Harvey Crow is a transferee of the mortgagor, acquiring title after commencement of the proceedings. He has questioned the standing of appellee, The Citizens Loan and Savings Company, in this court. It appears that the appellee's claim as mortgagee has been paid in full. We agree with appellant that The Citizens Loan and Savings Company no longer has any interest in this case. However, the attorney for appellee, The Citizens Loan and Savings Company, filed a brief on behalf of the assigness of the purchasers at the judicial sale. He stated in open court that he represented them. While the manner of asserting his representation has been somewhat informal, it is clear that the purchaser at a judicial sale is a party entitled to be heard upon the confirmation, and therefore equally a party to the appeal. See Reed v. Radigan (1884), 42 Ohio St. 292.

In our opinion, there is error apparent on the face of the record, and the order of confirmation must be reversed.

The Citizens Loan and Savings Company initiated this action on July 1, 1957, by a petition stating two causes of action. The first prayed for judgment on a note of one Grace Stone, deceased. The second was for foreclosure of the mortgage securing the note. The named defendants were the administrator of her estate and the heirs of Grace Stone. It might be noted in passing that the first cause of action is clearly improper and could not support a personal judgment. The petition contains none of the jurisdictional allegations necessary to support an action against the administrator, and the heirs are not, as such, personally liable on the note. Various other persons joined in the action. Serveral filed claims as alleged junior mortgagees, one as an alleged judgment lienor, and another as an alleged mechanic's lienor. The appellant J. Harvey Crow filed a motion alleging that he had acquired the property by deed and asking that he be made a party defendant. The motion was granted.

A number of preliminary proceedings occurred involving protracted litigation all the way to the Supreme Court of Ohio. A judgment order was eventually entered by the trial court on November 7, 1958. The terms of this entry are the controlling feature of this case. The prayer of the plaintiff's first cause of action was for $2,330.12 plus interest. The entry finds that the amount due on the debt was $2,784.52. The entry also finds the mortgage of The Citizens Loan and Savings Company to be valid and a first and best lien on the premises and to be in default.

The entry orders the defendant administrator and heirs to pay the amount found due in three days, purports to order that, unless so paid, the defendant's equity of redemption be foreclosed, and orders the premises to be sold. However, it must be noted that the entry did not pass upon the validity of any other claimed lien other than that of The Citizens Loan and Savings Company, did not determine the amounts due on any other alleged liens, nor determine the priority as between the lienors other than the finding that The Citizens Loan and Savings Company's was the first and best lien. The entry specifically provided that the proceeds of the sale were to be applied first to taxes, then court costs, then the plaintiff's mortgage, and the balance to be held 'until the rights, interests and priorities of the other lien holders be determined.' Nowhere in the entry did the court purport to enter a personal judgment for money in favor of the plaintiff or against any defendant.

The sale was set for December 20, 1958, at 10:00 a. m. At 9:19 a. m. on that date, the plaintiff, The Citizens Loan and Savings Company, filed with the clerk of courts a statement with the proper case heading and reciting 'Plaintiff judgment having been paid in full, please cancel order of sale previously issued herein.' The record also contains a statement of court costs and receipt for their payment by the appellant through that date. In argument during the case, counsel for the appellee confirmed that the plaintiff. The Citizens Loan and Savings Company, had been paid in full prior to the sale. Despite this, the sheriff conducted the sale, accepting the bid of the appellees, and made a return of sale to the court on the same date. An entry confirming the sale was filed December 23, 1958.

The record does not show any motion for confirmation, nor is there any order setting a hearing on confirmation. The entry of confirmation does not contain any recital that a hearing was held. The entry recites that the cause was heard on the return, and that the court, having examined the return and the orders of the court, found that the sale was in all respects in conformity to law. It approved and confirmed the sale, ordered a deed and a writ of possession. The entry is approved by the attorneys for the plaintiff, The Citizens Loan and Savings Company, and three other alleged lienholders. There is no indication of approval by the purchaser or his assignees, nor by the defendant administrator, the heirs or the then owner-appellant, J. Harvey Crow. Appellant duly filed his notice of appeal within 20 days of this entry, although more than 20 days after the entry of the judgment determining the amount due and ordering sale.

Appellant complains that the judgment entry of November 7, 1958, is for an amount in excess of the prayer. This contention is without merit because: (1) That order is not final and no timely appeal was taken. (2) No personal judgment for money was granted. That entry is a judgment in the sense of a final order, but in this case constituted an equity decree based solely on the second cause of action in equity for foreclosure. The amount found due is not...