Sickmeier v. Merchants & Mechanics Loan & Bldg. Ass'n of Newport

• Decision Date: 16 June 1942
• Citation: 163 S.W.2d 475,291 Ky. 182
• Parties: SICKMEIER et al. v. MERCHANTS & MECHANICS LOAN & BUILDING ASS'N OF NEWPORT.
• Court: Kentucky Court of Appeals

163 S.W.2d 475

291 Ky. 182

SICKMEIER et al. v. MERCHANTS & MECHANICS LOAN & BUILDING ASS'N OF NEWPORT.

Court of Appeals of Kentucky

June 16, 1942

Appeal from Circuit Court, Campbell County; A. M. Caldwell, Judge.

Suit by the Merchants & Mechanics Loan & Building Association of Newport, Ky. against Louis C. Sickmeier and others to recover balance due on a promissory note and foreclose real estate mortgage securing payment thereof.Judgment was rendered in accordance with prayer of petition, the real estate sold and subsequently upon failure of purchaser to comply with terms of sale it was ordered resold.Defendants appeal and plaintiffs move to dismiss the appeal and affirm as a delay case.

Motions to dismiss the appeal and affirm as a delay case overruled and judgment affirmed on the merits.

T. W Hardesty, of Newport, for appellants.

John W Heuver, of Newport, for appellees.

STANLEY Commissioner.

In March, 1935, the appellee, the Merchants and Mechanics Loan and Building Association of Newport, Kentucky, filed suit against the appellants, Louis C. Sickmeier and wife, to recover $3,989.41 and interest, and to enforce a mortgage on certain real estate.It was alleged that the sum claimed was a balance due on a note executed to the plaintiff by Hannah O'Krent and David O'Krent, and the property securing it had been subsequently conveyed to the defendant, Louis C Sickmeier, who had assumed the obligation.Copy of the deed was filed as an exhibit and it so states.The answer denied the assumption of the debt.The plaintiff's motion to strike it and each paragraph was never acted upon and no proof was taken.Judgment was rendered on November 19, 1938 in accordance with the prayer of the petition.The property was ordered sold for one-third cash and the balance payable in 6 and 12 months.The master commissioner reported the sale to the defendant Sickmeier for $3,510, but the report did not show that he had paid anything or had executed the bonds.The report was confirmed on motion of the master commissioner.In January, 1939, the purchaser's motion for a "deed, leave and writ and to pay before maturity" was sustained, but nothing was done under it.In April following, the plaintiff moved for a rule against the purchaser to show cause why he should not be punished for contempt for failing to comply with the terms of the sale by paying cash and executing the bonds.It does not appear that he was served with the rule or had any notice thereof.On May 24th the plaintiff filed a statement in support of its motion setting forth the purchaser's failure to comply with the terms of the sale and moving for an order of re-sale.There was no response or objection, and on June 5, 1939, the court ordered a re-sale of the property.The plaintiff became...