Kirby v. Circuit Court of McCook Cnty.

• Decision Date: 12 May 1897
• Citation: 10 S.D. 38,71 N.W. 140
• Parties: KIRBY v. CIRCUIT COURT OF McCOOK COUNTY.
• Court: South Dakota Supreme Court

10 S.D. 38

71 N.W. 140

KIRBY

v.CIRCUIT COURT OF McCOOK COUNTY.

Supreme Court of South Dakota.

May 12, 1897.

Certiorari by Patrick Kirby to the circuit court of McCook county. Judgment affirmed.C. A. Christopherson, for plaintiff. Boyce & Boyce, for defendant.

CORSON, P. J.

On June 3, 1895, a sale of certain real property was made by the sheriff of McCook county under a judgment entered in foreclosure proceedings, in which Joe Kirby was plaintiff and W. H. Ramsey and others were defendants, for the sum of $657. At this sale Joe Kirby bid in the property for $100, and on June 17th the sale was confirmed, and a deficiency judgment against the defendants in said action for $585.25 was entered. On June 24th the circuit court, upon application of said Ramsey and others, made an order vacating and setting aside said sale, and ordering a resale of the mortgaged premises under the same or an alias execution. From this order the plaintiff, Joe Kirby, appealed to this court, and the same was by this court affirmed. Kirby v. Ramsey, 68 N. W. 328. Patrick Kirby on June 17th, the day the sale was confirmed, paid to said Joe Kirby the $100 bid by him at the sale, as a junior mortgagee, and took from said Joe Kirby a certificate of redemption, but was not a party to the proceedings in which the sale was vacated and set aside. The said Patrick Kirby, upon an affidavit showing his interest in the property, obtained from this court a writ of certiorari to the circuit court of McCook county, requiring said court to properly certify to this court the record of the proceedings of the circuit court upon which said order was made. The clerk of the circuit court not only certified up the record in that proceeding, but also the certificate of redemption purported to have been made by Joe Kirby on June 17th; also, certificate of sale made by the sheriff of McCook county. Neither of these certificates was before the circuit court on the hearing of the order to show cause, and they had not been filed with the clerk of that court when said order setting aside and vacating said sale was made. The defendant now moves to strike these two certificates from the record and abstract in this case. The motion must be granted. The return of the clerk could only properly include the record before the circuit court, upon which that court acted in making the order complained of. These certificates were made a part of the affidavit upon which the writ of certiorari was granted by this court, but constitutes no part of the record to be considered by this court in determining whether or not the circuit court acted within its jurisdiction. The only office of the affidavit and these certificates is to show that the plaintiff herein had such an interest in the decision of the court below as to entitle him to a review of the proceedings of the court in making the order. The supreme court of New York, in discussing this question in Starkweather v. Seeley, 45 Barb. 164, says: “The matters stated in the affidavit on which a writ of certiorari is allowed form no part of the record, and cannot be noticed for the purpose of determining either the regularity or the validity of the proceedings before the county judge. *** There was nothing before the judge to show or suggest the idea that any one but Seeley was in possession, or claimed any right thereto; and the record shows nothing different. It is only by the extrinsic facts which appear in the affidavit, and which were not before the judge, that...