State ex rel. Kunz v. Campbell
| Decision Date | 01 September 1894 |
| Citation | 60 N.W. 32,5 S.D. 636 |
| Parties | STATE ex rel. KUNZ v. CAMPBELL, Judge. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. The practice of courts of equity, requiring confirmation of judicial sales, may properly be followed in sales on foreclosure of mortgages by action under the statutes of this state; and a report of the sale to, and its confirmation by the court is proper, whether indispensable or not under our system of foreclosure by action.
2. Courts exercising equity powers have a general supervision over their process, and more especially over sales made under their decrees, and they may confirm or set aside sales made under such decrees, either on motion when made by parties interested, or upon their own motion when, in their opinion justice demands that such action be taken.
3. The question of whether or not a sale made under a decree of foreclosure should be confirmed, rejected, or set aside, and a resale ordered, is within the sound judicial discretion of the court; and an order setting aside such sale, and ordering a resale, may be made by the court when, in its opinion, the price bid for the property is so inadequate as to work injustice to the parties, though the proceedings on the sale may have been regular, and the sale fairly made.
4. Where a bid is made for certain real property on a mortgage foreclosure sale made under a decree of the court, and on motion of plaintiff's attorney it is set aside by the court, and a resale ordered, upon the ground that the price bid was inadequate, such order, though made without notice to the bidder, is valid and binding upon all parties to the action, including the bidder at the sale, and no order confirming such sale can be made while such order is in force.
5. The bidder in such case makes his bid subject to the reserved power of the court to reject the sale, and order a resale of the property, in the exercise of its judicial discretion, and when, in its opinion, justice demands such action.
6. Where a sale made under the decree of the court has been set aside by the court and a resale ordered, and a resale has been properly made under such order, and confirmed by the court, the court cannot make a valid order confirming the first sale so vacated and set aside, while the order setting aside the first sale, and the order confirming the resale are in force; and the order assuming to confirm the first sale is void, and will be annulled in certiorari proceedings.
Petition by the state of South Dakota, on relation of M. Kunz, for a writ of certiorari to review the action of A. W. Campbell judge of the fifth judicial circuit of South Dakota, in confirming an execution sale to Lucetta R. Miller on foreclosure of a mortgage. Order of confirmation set aside and vacated.
T. H. Null, for plaintiff. A. B. Melville, for defendant and Lucetta R. Miller.
From the return made to the writ of certiorari in the above-entitled action it appears: That on October 2, 1891, a judgment of foreclosure was made and entered in the circuit court of Beadle county, in an action wherein M. Kunz, the plaintiff herein, was plaintiff, and Ann Eliza Miller, Medad Miller, Lewis W. Hazen, and John A. Fowler were defendants. That on November 10, 1891, a sale of the mortgaged premises, consisting of several separate tracts of land, was made, under which one Lucetta R. Miller bid in the N. E. 1/4 of section 19, township No. 110, range 65, in Beadle county, for the sum of $800; and that the same was struck off to her, and that the sale was duly reported to the court. That on December 10, 1891, Mr. Null, attorney for the plaintiff in that action, made an affidavit from which it appears that the said quarter section was reasonably worth the sum of $1,600, and that he was authorized by his client, in case a resale of said quarter section was ordered, to bid at least $1,500 for the same, and prayed that a resale might be ordered. Upon said affidavit the court, on the same day, made an order setting aside the sale as to the said quarter section, but confirmed the sale as to the other mortgaged property. So much of this order as is material to the question in controversy, after the usual recitals, is as follows: "It is hereby ordered that the sale under said special execution had upon the 10th day of November, 1891, so far as the same relates to the said tract of land struck off and sold to Lucetta R. Miller, be, and the same is hereby, in all things set aside; and the said sheriff is hereby directed to proceed under said special execution, or any alias execution that may be necessary for that purpose, and after having given the notice, and caused the publication to be made, as required by law in the first instance, and sell the said tract of land at public auction to the highest bidder for cash." That thereafter, on February 1, 1892, upon due notice given, the said quarter section was resold, and bid in by the plaintiff in this action for the sum of $1,600, and which sale was duly reported to the court, and was thereafter confirmed by the court, and a sheriff's certificate issued to the said plaintiff, and the said $1,600 credited upon the judgment of the plaintiff. No further proceedings were had in said action until October, 1892, when a motion was served upon plaintiff's attorney by A. B. Melville, Esq., as attorney for Lucetta R. Miller, of a motion to confirm the sale made to said Lucetta R. Miller on November 10, 1891. Upon the hearing of this motion the circuit court, on January 27, 1893, made an order, the material part of which is as follows: No order was made setting aside or vacating the order of December 10, 1891, vacating and setting aside the sale of the quarter section in controversy to Lucetta R. Miller, and directing that said quarter section be resold, and under which the resale to the plaintiff was made, or of the order confirming the latter sale; no appeal was taken from the order of December 10, 1891, or the order confirming the sale, nor were they, so far as the record discloses, in any manner vacated or set aside or modified; so that when the order of January 27, 1893, was made, the original order vacating the sale and ordering a resale, and order confirming the resale, were in full force and effect.
The question, therefore, presented by the return is: Did the court have jurisdiction to make the order of January 27 1893, confirming the sale to Lucetta R. Miller of November 10, 1891, which had been vacated and set aside by the order of December 10, 1891, and under which a resale had been made and confirmed by the court? It is contended by the counsel for the plaintiff that the court exceeded its jurisdiction in making the last order, and that the same is null and void. Counsel for Lucetta R. Miller contends that the court still had jurisdiction of the subject-matter and the parties, and that it therefore had jurisdiction to make the order, and that it is therefore a valid and binding order. The sections of the statute applicable are as follows: Section 5507: "A writ of certiorari may be granted by the supreme and district courts, when inferior courts, officers, boards or tribunals have exceeded their jurisdiction, and there is no writ of error or appeal, nor, in the judgment of the court, any other plain, speedy and adequate remedy." Section 5513; "The review upon this writ cannot be extended further than to determine whether the inferior court, tribunal, board or officer, has regularly pursued the authority of such court, tribunal, board or officer." If the circuit court, therefore, exceeded its jurisdiction or failed to pursue the authority of such court in making the order of January 27, 1893, confirming the sale made to Lucetta R. Miller on November 10, 1891, its proceedings must be set aside. The theory of the court in making the order of January 27, 1893, evidently was that his order of December 10, 1891, vacating and setting aside the sale, and his order confirming the resale, were void orders. If the orders were absolutely void, and not simply irregular, no order setting them aside was required. It will therefore be necessary to determine, first, the nature of these orders and the authority of the court to make them. The sale in that case was made upon a judgment of foreclosure of a mortgage, and under a special execution or order of sale, and was made by the sheriff, not as sheriff, but as a person appointed by the court for that purpose. Such a sale, when confirmed, is a judicial sale, and is made under the supervision of the court. Our statute in relation to the foreclosure of mortgages by action has made no provision for a report of the sale to the court by the officer making the same, or for the confirmation of the sale...
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