Kœhler v. Ball , 2 Kan. 160 ( 1863 )

JBy the Court,

Cobb C. J.

Execution was issued out of the District Court of the Territory in Leavenworth County in favor of the defendants in error, plaintiffs in the Court below, against the property of the plaintiffs in error, defendants in that Court, on the 10th day of July 1860, for the collection of $3,500.14 debt, with interest and costs. Certain real estate was sold by the sheriff under said execution and purchased by the plaintiff therein.

On the 5th day of September 1860, in the same Court an order was made on motion of the plaintiff below, and without appearance by the defendant, confirming said sale.

On the second day of April 1863, the said defendant made a motion in the District Court of the first Judicial District of the State of Kansas in Leavenworth County, to set aside said order of confirmation and the appraisal and sale of the land as contrary to law and irregular, which motion that Court declined to entertain. Whereupon he filed his petition in error in this Court to reverse the order con" firming said sale.

It is claimed that the order of confirmation in question is not a final order, and for that reason and because no exception to it was taken, it is not reviewable here. Whether it is so reviewable will be first considered. Section 524 of the Code provides that an order affecting a substantial right made in a special proceeding or upon a summary application after judgment is a final order which may be vacated, modified or reversed, &c.

Section 526 provides that “ the Supreme Court shall also-have authority to reverse or modify any of the following orders of the District Court,—first a final order as defined in Section No. 521.

The order in question is clearly an order made upon a summary applicátion after judgment, and as certainly affects a substantial right, the right of the purchaser to receive a conveyance of the property and of the judgment creditor to receive the purchase money—Sec. 119 of Code, and is therefore accurately described as a final order by Sec. 521.

Is it necessary that exception should be taken to such order that it may be reviewed ?

In the case of the Commercial Bank of Cincinnati et al. v. Horatio Buckingham, 12 O. St., 102, the Supreme Court of Ohio decided under a code entirely similar to ours in regard to taking exceptions, that it was not necessary for á party seeking the reversal of a final judgment to take exceptions at the time of its rendition, saying: “ The object of an exception is generally to bring upon the record for review, a decision of the Court upon a matter of law which the record would not otherwise show. In such cases the exception must be reduced to writing and allowed and signed by .the Court. But when the decision excepted to is'entered on the record and the grounds of objection appear in the entry, the exception may be taken by the party causing it be noted at the end of the decision that he excepts.” Code, Seo. 293. It is provided by Sec. 291 of the Code, that a the party objecting to the decision, must except at the time the decision is made.” These provisions of the Code are all found in title nine, which treats of and regulates the trial of causes, and they manifestly relate to decisions which are made by the Court upon questions of law which arise during the progress of the trial. Where objection is made at the time to such decisions, all grounds of exception may perhaps be obviated by the action of the other party or the consideration of the Court. But if the parties acquiesce in the decision by proceeding in the trial without objection they are regarded as waiving their right to except. But these provisions of the Code do not relate to the final judgment of the Court, which at the close of the trial definitely fixes the rights of the parties in the action. The judgment is not properly a part of the trial but forms the subject of a distinct title in the Code. If the record shows such final judgment to be erroneous it is the right of the party aggrieved to have it reversed, vacated or modified on petition in error to the proper reviewing Court. To note an exception to a final judgment in the Court which renders it, would seem to be utterly futile. The uniform practice of this Court has hitherto been in accordance with these views.”

'We copy the language of the learned Court at large, because the provisions of our Code relating to the question under consideration, are in substance identical with those of the Ohio Code therein cited, and the reasoning of that Court entirely satisfactory to our minds, is therefore as conclusive under our Code as under that of Ohio. The reasoning also, applies to final orders made in an action after judgment, with the same force as to judgments.

The order in question then is a final order, properly receivable in this Court without exception taken in the Court below. We therefore proceed to examine the alleged errors.

The duty of the Court as to confirming sales of real estate on execution is prescribed by Sec. 449 of the Code, which reads as follows: “ If the Court upon the return of any writ of exécution for the satisfaction of which any lands, tenements or stock in trade have been sold, shall alter having carefully examined the proceedings of the officer be satisfied that the sale has in all respects been made in conformity with the provisions, of this title, the Court shall direct the clerk to make an entry on the journal that the Court is satisfied of the legality of such sale, and ap order that the officer make to the purchaser a deed for such land,” &c. The Court is to be satisfied that the sale has been made in conformity with law by examining the proceedings of the officer, and if so satisfied is imperatively required to confirm the sale. It is not required on motion for confirmation to look into the judgment or execution farther than is necessary to determine whether the officer has properly performed his duty under the writ, nor permitted to decide upon the regularity of either.

The order of confirmation is an adjudication merely that the proceedings of the officer as they appear of record are regular, and a direction to the sheriff to complete the sale.

If the execution is irregular or unauthorized by law, the defendant has his remedy by motion to set it aside, or if it is void by controverting the title made under it, and if it is levied upon property not belonging to the judgment debtor or by any reason not liable to such execution, such wrong not appearing in the proceedings of the officer, has its appropriate remedy independent of and no way effected by the order of confirmation.

The doctrine here advanced was held by the Supreme Court of Ohio in the case of Buckingham v. Granvile Alexandria Society, 2 Ohio, 360. A motion for an order to the sheriff to make a deed of land sold upon a fi.fa. is a proceeding quite analogous to a motion for confirmation under our Code. This decision was made previous to the enactment of the Ohio Code, but under a provision of law nearly identical with Sec. 449 of our Code. In that case Hitchcock, justice, delivering the opinion of the Court, says: “Upon a motion to set aside an execution, as has been before observed, the Court can with propriety examine the previous proceedings to ascertain whether there has been any irregularity in the orders of the Court, or in the proceedings of the clerk. But upon a motion similar to the present, I apprehend we can look no farther than to ascertain whether the officer in making the sales has pursued the law. I infer this from the nature of the application and from the words of the statute. These words are as follows, “ provided that if the Court to which any execution shall be returned by the officer for the satisfaction of which any lands and tenements may have been sold, shall after having carefully examined the proceedings of said officer, be satisfied that the sale has been made in all respects in conformity to the provisions of this act, they shall direct their clerk to make an entry in the journal, that the Court are satisfied of the legality of such sale, and an order that the said officer make to the purchaser a deed for such land and tenements.”

The decision of that case it will be seen, by the language of. the learned justice and the statutory provision cited by him, is quite in point to sustain the views above expressed by us.

If this view be correct, as we cannot doubt it is, all questions of the regularity of the execution and other alleged defects and irregularities not appearing to the Court by the return of the officer, are excluded from our consideration under this petition in error which seeks only to reverse the order of confirmation, and we have only to inquire whether the proceedings under the execution as returned by the sheriff, were in conformity with law.

Section 407 of the Code provides that if no goods or chattels of the debtor can be found the officer shall endorse on the writ of execution “ no goods,” and forthwith levy the writ of execution on the lands and tenements of the debtor. No such endorsement is found upon the writ in question, nor any evidence in the return that the debtor had not sufficient goods and chattels to satisfy the execution. The object of the provision for such endorsement is that the personal property of the debtor, may be first applied in payment of the debt, and if there is none, to place proof of that fact upon the record to satisfy the Court of the regularity of the sale in that respect upon motion for confirmation.

Sucli proof being wholly lacking in this case, tbe sale for that reason ought not to have been confirmed. The Act entitled an Act relating to sales of real property passed Feb. 27, 1860, ánd which went into effect on the same day, provides that the officers whose duty it shall' be to make any sale of real property under any statutory provision of this Territory, shall give at least five days notice of such sale to the person to whom the land belongs. Comp. Z., 772.

That law was in force and applicable to the sale in ques-' tion, but the sheriff’s return does not show compliance with it, and is in that respect insufficient.

The District Court of the State was right in declining to entertain the motion to set aside the order of confirmation made by the District Court of the Territory. There was ho irregularity in obtaining the order complained of, but an error of the Court, in confirming a sale not regular upon the face of the papers, appears, and for that error the order of confirmation must be reversed with cost against the defendants in error.

All the justices concurring.