Ham v. Peterson , 40 Kan. 245 ( 1888 )

Opinion by

ClogstoN, C.:

This is a proceeding to review an order of the district court of Rooks county in refusing to confirm a sale made upon execution of certain town lots in Rooks county, purchased by W. B. Ham at said execution sale. The record presents the controversy between the purchasers, Peter Peterson and W. B. Ham, which relates solely to the regularity of the proceedings of the first sale and the right of the sheriff to cancel said sale for the non-payment of the purchase-money. While that proceeding is incorporated in the record, yet no complaint is made of the ruling of the court setting aside the sale to Peterson and refusing to confirm such sale, and sustaining the action of the sheriff. Why that was incorporated in the record we do not know. A sale was made to Peterson; he failed to pay the sheriff the purchase-money, and for that reason it was set ¿side by the sheriff, and the court refused to confirm the sale. This was a matter of which Peterson might complain. The second sale, and the one of which W. B. Ham, the plaintiff in error, complains, seems to have been regular. The execution was duly issued, was duly levied, the property duly appraised, advertised and sold; after which the record is silent. The execution and its return are not incorporated in the record. While the court made terms with the judgment debtor that he was to pay into court the amount of the judgment and costs, yet the record does not disclose that for that reason alone the court refused to confirm the sale to Ham. The return of the officer on the execution may have been so defective that the court was justified in refusing to confirm it. If that execution was duly returned showing the sale and proceedings to have been regular, then it was the duty of the court to confirm the sale, and it had no arbitrary right or power to set it aside. (N. E. M. S. Co. v. Smith, 25 Kas. 622.) But in the absence of any showing of what the return contained, we cannot say that the court committed an error in refusing to confirm the sale.

We therefore recommend that the ruling of the court below be affirmed.

By the Court: It is so ordered.

All the Justices concurring.