Male v. Harlan

• Decision Date: 02 March 1900
• Citation: 82 N.W. 179,12 S.D. 627
• Parties: WILLIAM H. MALE et al., Plaintiffs and appellants, v. JAMES E. HARLAN et al., Defendants and respondents.
• Court: South Dakota Supreme Court

12 S.D. 627

82 N.W. 179

WILLIAM H. MALE et al., Plaintiffs and appellants,

v.

JAMES E. HARLAN et al., Defendants and respondents. South Dakota Supreme Court Appeal from Circuit Court, Meade County, SD Hon. A. J. Plowman, Judge Appeal dismissed. Edwin Van Cise, Deadwood, SD Attorney for appellants. Martin & Mason, Deadwood, SD Attorneys for respondent. Opinion filed March 2, 1900 (See 91 NW 117)

CORSON, J.

This was an action to foreclose a real estate mortgage. James E. Harlan was made defendant for the reason that he held a certificate on a tax sale made of the property included in the mortgage, which the plaintiffs claimed was subject and subsequent to the mortgage. Harlan claimed that the tax certificate was a prior and paramount lien upon the property. The judgment or decree was in the usual form, decreeing the sale of the mortgaged property, and that all and each of the defendants be forever burred and foreclosed of all right, title, interest, and equity of redemption in and to the said mortgaged premises so sold, or any part thereof, unless the same should be duly redeemed within one year from the day of sale as provided by law, “excepting, however, a lien in favor of defendant James E. Harlan for the sum of $129.43, with interest thereon at 12 per cent. per annum from November 6, 1893, on account of taxes paid by him on the mortgaged premises, which lien is decreed to be prior and paramount to that, of plaintiffs’ and that plaintiffs’ lien and the sale made under this decree shall be subject to such paramount lien in favor of defendant James E. Harlan, and also to a further lien in his favor for the sum of $17 costs, awarded to him against the plaintiffs in this action.” The plaintiffs proceeded to advertise and sell the property mortgaged under this decree, and subsequently took an appeal to this court from that portion of the judgment excepting the lieu in favor of defendant Harlan. Respondent now moves to dismiss this appeal, on the ground that the appellants could not appeal from that portion of the decree entered in the lower court which was adverse to them, and at the same time enforce that portion which was in their favor; the enforcement of the decree by execution being a ratification of its validity and a waiver of their right of appeal. And in support of his motion to dismiss the respondent contends that the appellants have sold the mortgaged premises subject to defendant Harlan’s lien as required by the decree, and that they have therefore presumably made their bid with reference to that lien, and, having obtained the land for a price presumptively less than its value to the amount of the lien, they now seek to have that lien nullified and set aside; and respondent insists that the general rule, that the enforcement of the judgment by execution or otherwise is a ratification of its validity, and is an abandonment or waiver of the right of appeal, applies to this case. The appellants insist, in opposition to the motion, that they have a right to take an appeal from that part of the judgment affecting only the Harlan lien, and at the same time enforce their decree against the property mortgaged, as the sale was made and the property bid in without reference to the Harlan lien; and while they do not question the general rule, as stated by respondent; that the enforcement of the judgment by execution is a ratification of its validity, they contend that in this state, where an appeal may be taken from a part of the judgment, there are many exceptions to the general rule, and that this case comes within the exceptions.

It is undoubtedly true that, while the statute in this state does not in terms permit an appeal from a part of a judgment, such an appeal is clearly contemplated by Section 5215, Comp. Laws, which provides that the notice of appeal must state whether the appeal is from the whole or a part of the judgment, and, if from a part only, specify the part appealed from. But while an appeal may be taken from a part of a judgment, if the judgment is enforced by execution or otherwise, and is inconsistent with the part appealed from, the appeal cannot be sustained. In this case the claim of appellants that they sold the property under the judgment without reference to Harlan’s ...