Collins v. Siegal

• Decision Date: 28 April 1938
• Docket Number: 26968.
• Citation: 14 N.E.2d 582,214 Ind. 206
• Parties: COLLINS et al. v. SIEGAL et al.
• Court: Indiana Supreme Court

14 N.E.2d 582

214 Ind. 206

COLLINS et al. v. SIEGAL et al.

No. 26968.

Supreme Court of Indiana

April 28, 1938

Appeal from Superior Court, Lake County; Lawrence Becker judge.

Willard B. Van Horne, Willard B. Van Horne, Jr., and Winslow Van Horne, all of East Chicago, for appellants.

Allen P. Twyman, of East Chicago, for appellees.

SHAKE Judge.

This is a second appeal of this case. The former opinion, entitled Christ v. Collins et al., Ind.Sup., was filed on February 24 1937, and is reported in 6 N.E.2d 698.

The history of the litigation may be briefly summarized as follows: The present appellants obtained a judgment and a decree of foreclosure on a real estate mortgage against certain persons not parties to this appeal. A sheriff's sale was duly advertised, and the appellants and appellee Christ were the only bidders. Christ questioned appellants' right to bid, and the sheriff refused to deliver a certificate of purchase to either. Appellants thereupon applied to the court below for an order directing the sheriff to recognize their bid and to issue them a certificate. A hearing was had and the court found for the present appellants. An appeal was prosecuted to this court which reversed the cause and issued its mandate that the trial court set aside the judgment and enter judgment for appellant (Christ). Thereupon, the court below did set aside the judgment and did enter judgment for Christ, with directions to the sheriff to issue him a certificate of purchase, in accordance with the terms of his bid, 'said certificate to bear date of said sale.' In compliance with this order the sheriff did, on or after July 2, 1937, issue to Christ a certificate of purchase dated May 17, 1935, that being the date for which the sale had been advertised. Immediately thereafter a sheriff's deed was likewise issued and delivered to Christ.

The appellants, claiming the right to redeem from the sale to Christ, and feeling themselves aggrieved by that part of the lower court's order which directed that said certificate of purchase should bear the date of the sale, brought this proceeding to modify the judgment so as to afford them an opportunity to exercise their redemption privileges. The motion to modify was denied, and this appeal follows.

The judgment of this court on the former appeal is, of course, res judicata as to the parties of record thereto, with respect to all matters in issue and determined therein. The vital part of that judgment is the mandate appended to the opinion, although we may look to the body of the opinion, if necessary, to ascertain the full intent, purpose, and scope of the relief granted.

The sole question presented by this appeal is this: Was the trial court warranted in directing that the certificate to be issued to Christ should 'bear date of said sale,' in view of the directions given it by this court. 'It is the duty of the lower court, on the remand of the cause, to comply with the mandate of the appellate court and to obey the directions therein, without variation.' 4 C.J. 1221; 5 C.J.S., Appeal and Error, § 1966. The former mandate of this court appears clear and unambiguous. It simply directed the court below to set aside the judgment appealed from and to enter judgment for Christ. It did not authorize any nunc pro tunc entry; it did not direct that Christ should be issued a past-dated certificate. When an officer or a tribunal does a thing which he is directed to do, the record of the act done should bear the date of compliance, in the absence of specific directions otherwise. There is a presumption in law that an instrument was executed on the date that it bears. Bouv.Law Dict., Rawles 3rd Rev., date. We think the action of the court below in directing a certificate to be issued to 'bear date of said sale' was beyond the scope of the mandate of this court.

The rule which we have applied is not only sound, but it is in aid of the substantial rights of all the parties to this appeal. The right of redemption is a valuable one, recognized by statute and protected by principles of equity. It is not claimed that appellants were not entitled to redeem, but it is asserted that the period of redemption has expired by limitation. When, under the order of the court below, a past-dated...