Commercial Nat. Bank v. Smith
| Decision Date | 01 April 1890 |
| Parties | Commercial Nat. Bank v. Smith et al. |
| Court | South Dakota Supreme Court |
1. An order made by the district (circuit) judge, under the provisions of section 5411, Comp. Laws, refusing an order enjoining foreclosure proceedings by advertisement, is an order of the judge, and not of the court, and is not appealable.
2. The application by the mortgagor, provided for in said section, was designed to be so far ex parte as not to authorize or allow resisting affidavits tending to disprove the statements of mortgagor's affidavit, setting up his defense or counter-claim, to be heard or considered by the judge upon the hearing of such application.
3. Any bill of exceptions, properly settled, which brings before this court a record of the fact that such affidavits were received and entertained upon the hearing of the application, raising issues of fact, upon his decision of which the judge determined the mortgagor's right to such an order of stay and transfer, is sufficient to present the question of error in a case properly before this court.
Appeal from circuit court, Beadle county; A. W. Campbell, Judge.
Motion to dismiss appeal.Myers & Null, for appellants. Mouser & Vollrath, for respondent.
In September, 1889, respondent commenced the foreclosure, by advertisement, under section 5411 et seq., Comp. Laws, of a mortgage upon real estate in the county of Beadle, given by appellants to Edgar C. Avery, and, through successive transfers, finally assigned to respondent. Before the day appointed for the sale of the mortgaged premises the appellant Nathan T. Smith presented his affidavit to the judge of the district within which said Beadle county was situated, alleging “that the note secured by said mortgage had been fully paid, taken up, and canceled,” and more particularly alleging that such payment was made to the First National Bank of Huron, Dak., which, upon such payment, delivered up the said note and mortgage to affiant; and upon such affidavit applied for an order enjoining the respondent from foreclosing such mortgage by advertisement, and directing that all further proceedings be had in the district court for said Beadle county, as provided in said section 5411, Comp. Laws. Upon the hearing of this application the respondent appeared, and in resistance thereto presented a number of affidavits tending to negative the allegations of appellant's affidavit as to payment. These affidavits were received and considered by the judge against the objection of appellant, and upon such hearing the application of appellant was denied and the order refused; and from this order of the judge the appeal is taken to this court.
Respondent moves to dismiss the appeal upon two grounds: (1) The order from which the appeal is sought to be taken is not an appealable order; (2) no bill of exceptions, properly settled, has brought to this...
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Tracy v. Scott
...and appeals.” That opinion is decisive of the case at bar. The Supreme Court of South Dakota, in the case of Commercial National Bank v. Smith, 1 S. D. 28, 44 N. W. 1024, held that an order of this nature was not appealable, because it was an order of the judge, and not an order of the cour......