State National Bank v. Neel

• Decision Date: 29 March 1890
• Citation: State National Bank v. Neel, 53 Ark. 110, 13 S. W. 700 (Ark. 1890)
• Parties: STATE NATIONAL BANK v. NEEL
• Court: Arkansas Supreme Court

13 S.W. 700

53 Ark. 110

STATE NATIONAL BANK v. NEEL

Supreme Court of Arkansas

March 29, 1890

APPEAL from Jefferson Circuit Court in Chancery, JOHN A. WILLIAMS Judge.

Judgment reversed and cause remanded.

N. T White for appellants.

The order confirming the sale made March 10, 1887, had become final and passed beyond the control of the court after the lapse of the term at which it was made.33 Ark. 454, 35 Ark 123;23 Ark. 601.

None of the grounds mentioned in sec. 3909, Mansf. Dig., are shown.

In all judicial sales the court is the vendor, and it has the right to reject or confirm the sale.20 Ark. 652;23 Ark. 39;32 Ark. 391;49 Ark. 67;Rorer, Jud. Sales(2d ed.), secs. 28, 106, and note 3.The order was final and could have been appealed from.23 Ark. 39;20 Ark. 652;Rorer, Jud. Sales, secs. 113 and 121 and notes.But after the lapse of the term it became final, and passed beyond the control of the court.

M. L. Bell for appellee.

1.The order of the 10th of March, 1887, was not such a final order as that an appeal would lie.It was merely an interlocutory order upon Neel, who was not a party to the suit.A receiver is an officer of the court, and sales by him are subject to the approval of the court, and it has complete jurisdiction over the matter.20 Ark. 652;23 Ark. 39;32 Ark. 391.The court sold the mules to Neel, and if at any time the court ascertained it had made a mistake, or done an injustice, it certainly had power to correct the mistake.20 Ark. 662;2 Dan., Chy. Pr., 1465-1467.See also3 Paige, 100;13 Wend. 224;3 Johns. Chy. 425.

OPINION

HUGHES, J.

In the suit of appellants, attaching creditors of C. M. Neel, John M. Clayton was appointed receiver and was ordered by the court to sell part of the property that came to his hands; and on the 14th of February, 1887, the receiver filed his report of the sale.Exceptions were filed to his report of the sale of eighty-two mules, purchased by C. M. Neel, Jr., by the creditors, who alleged that the price at which they were bid off was inadequate, being an average of $ 63.72 per head, and they offered, if a re-sale should be ordered, to make them bring $ 90.00 per head.The court ordered that, unless C. M. Neel, Jr., would pay the sum of twenty dollars per head more than his bid for the mules, the sale should be set aside, and a re-sale ordered, but that, if he would accept the terms proposed and give his note for the increased price, the sale should be confirmed.Neel accepted the terms and gave his note accordingly.This was at the March term (10th day of March), 1887, of the Jefferson circuit court.At the same term of court on the 17th of June, 1887, C. M. Neel, Jr., filed his petition to be relieved of the sixteen hundred and forty dollars, the increased price of the mules as fixed by the court.On the 13th of July, 1887, after the attachments of appellants had been sustained, the court ordered the receiver to disburse the funds amongst the various creditors.At the September term of the court in 1887, on the 10th day of January, 1888, the court appointed the receiver and two other persons a committee to ascertain and report to the court the value of the eighty-two mules purchased by C. M. Neel, Jr., and the reasonableness of the bid therefor.The receiver reported that the mules were worth from eighty to one hundred dollars, and one of the other committeemen reported that the first sale was a fair one, and that the price bid for the mules was reasonable.The other committeeman did not report.On the 24th of February, 1888, the court made an order revoking the order of the 10th of March, 1887, and relieved the said C. M. Neel, Jr., from the payment of the sixteen hundred and forty dollars, the amount of the increase in the price of the mules over his bid for the same.An appeal was taken from this last order.Had the court the power to make this order, setting aside the order of confirmation of the sale, after the lapse of the term at which the confirmation was made?Was the order of confirmation a final judgment, from which an appeal would lie?

In judicial sales the court is the vendor, and it may confirm or refuse to confirm a sale made under its order in the exercise of a sound judicial discretion.Penn v. Tolleson, 20 Ark. 652;Sessions v. Peay, 23 Ark. 39;Thomason et al. v. Craighead et al., 32 Ark. 391;Morrow v.McGregor, 49 Ark. 67, 4 S.W. 49;Rorer on Judicial Sales, secs. 124, 126, 128, 394, 395, 396.It was within the discretion of the court to refuse to confirm the sale as originally made to C. M. Neel, Jr., and to confirm it upon his acceptance of the terms of the court's order, that it would be confirmed upon his agreeing to pay twenty dollars in addition to his bid on the average price of the eighty-two mules.When Neel had done this,...