Wilson v. Thorn

• Decision Date: 05 April 1890
• Citation: 13 S.W. 365
• Parties: WILSON et al. v. THORN et al.
• Court: Kentucky Court of Appeals

13 S.W. 365

WILSON et al. v. THORN et al.

Court of Appeals of Kentucky.

April 5, 1890

Appeal from circuit court, Pulaski county.

"Not to be officially reported."

Action to enforce a mortgage lien brought by W. F. Thorn & Co. against Riley Wilson and others. There was judgment for plaintiffs, and defendants appealed.

M. H Owsley, for appellants.

O. H Waddle, for appellees.

HOLT J.

The appellees, W. F. Thorn & Co., brought this action to enforce their lien against a house and lot, and some other real estate, mortgaged to them by the appellant, Riley Wilson, and his wife. Other lienholders were made defendants. This is an appeal from the judgment confirming the sale made under the decree enforcing the lien.

Various grounds for a reversal are urged. Among them, it is said that the court did not determine the priorities of the lienholders, or render judgment in favor of any of them, save the appellees; and that therefore the court erroneously ordered all of the land sold, and evidently more than was necessary for the payment of the appellees' debt; also that it was prejudicial to appellant to authorize the advertisement of the sale, and which was made upon written notices, by either printed or written ones; that the judgment did not sufficiently describe the property to be sold; and that the wife's rights were not ascertained or protected.

It is sufficient to say, if any of these objections are well founded, yet they relate to the judgment of sale, from which no appeal has been taken. Indeed, time had run against such an appeal when this one was taken. The report of sale by the commissioner was filed upon the second day of the October 1888, term of the court. Time was given, from day to day, during the term, to appellant, to file his objections to the sale. He did not do so until the last day of the term. Their trial was then continued until the next term, when the appellant asked a continuance upon the ground that he was informed that the attorney who had been theretofore representing him in the case, and who was then absent, was sick. The appellant was then represented in court by two attorneys. Under such circumstances, the action of the court in refusing a continuance will not be disturbed.

It was agreed upon the trial below that the sale was properly advertised.

It appears that the wife of the appellant bid in the house and lot at the sale at $1,200; that being the sum at which...