Merkle v. Merkle
| Decision Date | 21 July 1961 |
| Citation | 22 O.O.2d 202,188 N.E.2d 170,116 Ohio App. 370 |
| Parties | , 22 O.O.2d 202 MERKLE et al., Appellees, v. MERKLE, Appellant. * |
| Court | Ohio Court of Appeals |
Phil D. Butler, Chillicothe, for appellees.
Robert Merkle, Cleveland, in pro. per.
The parties to this litigation are brothers and sister, and tenants in common in 248 acres of land situated in Twin Township, Ross County, Ohio. On June 9, 1960, the appellees in this court filed a petition in the trial court seeking partition of the abovementioned farm. The land was appraised at $30,000, and the commissioners, being unable to effect partition by metes and bounds, recommended to the court that the land be sold. One of the plaintiffs and the defendant each filed an election to take the property at the appraised value. The result was obvious, and the trial judge ordered the farm sold at public sale. The sale was held on October 28, 1960. All the parties were present at the sale and the farm was 'knocked off' to Robert Merkle for the sum of $23,700. Robert Merkle, the appellant herein, deposited a check with the sheriff for more than the ten per cent required by the advertisement.
On November 4, 1960, the plaintiff J. D. Merkle file a motion to decline confirmation of the sale, urging that he had been confused at the sale by the procedure and that he had intended to bid at least $37,000 for the farm. With the motion to decline confirmation, J. D. Merkle attached a cashier's check in the sum of $3,700 as evidence of good faith of his 'up set bid' of $37,000. On November 15, 1960, the defendant, Robert Merkle, filed a motion to confirm the sale. A hearing on both motions was had on December 16, 1960. A record was made of this hearing, which constitutes the bill of exceptions in this cause.
The defendant, Robert Merkle, seasonably filed a request for separate findings of fact and conclusions of law. Responding to the request, the separate findings and conclusions were included in the journal entry approved by the court on February 23, 1961, refusing to confirm the sale and ordering it re-advertised and offered for public sale. From that order this appeal was perfected.
There is no question in the minds of our profession that confirmation of a judicial sale is a matter entirely within the sound discretion of the trial judge, be it sale on execution, foreclosure or partition. The law requires the trial judge to fully examine the proceedings, and, if they are regular, the sale must be confirmed. Failure to so confirm when the proceedings are regular amounts to an abuse of discretion. This is borne out by a long line of cases. See, Ohio Life Ins. & Trust Co. v. Goodin, 10 Ohio St. 557; Lemert v. Clarke, 1 Ohio Cir.Ct. R., 569, 1 Ohio Cir.Dec., 318; Reed v. Radigan, 42 Ohio St. 292; Niles v. Parks, 49 Ohio St. 370, 34 N.E. 735; Ozias v. Renner, 78 Ohio App. 168, 64 N.E.2d 324; and Mitchell v. Crain, 108 Ohio App. 143, 161 N.E.2d 80. This same principle is drawn from the following secondary authorities: Merwine's Judicial Conveyance of Real Estate, Sections 118 and 320; 22 Ohio Jurisprudence (2d), 168, 277, Sections 243 and 406; 32 Ohio Jurisprudence (2d), 520, 526, 527, Sections 79, 84 and 86; and 41 Ohio Jurisprudence (2d), 645, 669, Sections 111 and 137.
It becomes apparent that the question of exercise of sound judicial discretion must be bottomed upon the factual situations surrounding each sale. In this cause the facts are in dispute as may be seen by examining the bill of exceptions herein. If one line of testimony is to be believed it would appear that one of the parties to the suit was confused by the procedure at the sale. If the view of the other party is adopted there was no confusion and the unsuccessful bidder merely became a disappointed bidder and did nothing until the day following the sale. Two conclusions are inescapable, however, upon which there is no dispute: the first, that the 'up set bid' placed by J. D. Merkle was a 56 per cent increase in the sale price of the farm; the second, that it is undisputed that Robert Merkle freely admitted under oath that he asked the tenant on the farm not to bid at the sale. The tenant was present at the sale and did not bid. The trial judge apparently accepted as true the contention of J. D. Merkle that he was confused by the procedure followed at the sale, and, accumulating this with the undisputed facts just referred to, held the entire proceedings were shocking to his conscience and refused to confirm the sale.
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State ex rel. Midwest Pride IV, Inc. v. Pontious
...thus permissibly relied on the agreed entry identifying irregularities in the sheriff's sale. See, e.g., Merkle v. Merkle (1961), 116 Ohio App. 370, 22 O.O.2d 202, 188 N.E.2d 170 (court did not abuse its discretion in setting aside judicial sale by relying on disputed testimony of plaintiff......
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EMC Mtge. Corp. v. Pratt, 2007 Ohio 4669 (Ohio App. 9/11/2007)
...filed. Faced with circumstances that had no apparent irregularities, the trial court was required to confirm the sale. Merkle v. Merkle (1961), 116 Ohio App. 370 (where the proceedings are regular, the sale must be confirmed). Therefore, the trial court was vested with and properly exercise......
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Hall v. Vance, 2009 Ohio 4945 (Ohio App. 9/15/2009)
...in Merkle v. Merkle, (1961), 116 Ohio App. 370, 188 N.E.2d 170, with regard to the proper standard of review of the issues raised herein. In Merkle, we reasoned as "There is no question in the minds of our profession that confirmation of a judicial sale is a matter entirely within the sound......
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Commercial Federal Mortgage Corp. v. Ralph W. Sarson
... ... 60 (sale vacated when creditor ... mistakenly believed that it had entered successful bid and ... therefore stopped bidding); Merkle v. Merkle (1961), ... 116 Ohio App. 370 (sale vacated when party became confused ... and stopped bidding when he meant to bid ... ...