Hjeltness v. Johnson , 195 Minn. 175 ( 1935 )

¹ Reported in 262 N.W. 158. A valid foreclosure sale of the involved premises was had March 21, 1933, so that the statutory year for redemption would have expired March 21, 1934. On February 27, 1934, upon application of petitioners, the court made an order extending the time for redemption to February 1, 1935. Since that time no further extension has been granted. On January 23, 1935, a petition for further extension of time within which to redeem was made. This matter was returnable and to be heard February 1, 1935. The hearing was continued until February 2 at the request of petitioners' attorneys. On that day they again asked further continuance, assigning as a reason therefor that they were awaiting legislative extension of the moratorium act (L. 1933, c. 339). The court, over objection of respondent, continued the matter to March 1, 1935, at that time remarking: "I will continue this matter until the first day of March. By that time * * * at that time there will be definite action taken, and you might as well make up your minds to that effect." On March 2 the court made an order reading: "It is ordered that the relief demanded in said order to show cause and motion be, and the same is hereby in all things denied, and said order to show cause is hereby discharged, vacated and set aside." That order was filed March 4 and notice thereof served March 23, 1935. On March 15, 1935, L. 1935, c. 47, was approved by the governor. By its terms the provisions of L. 1933, c. 339, are extended until March 1, 1937. Thereafter, as stated in petitioners' brief:

"On March 21, 1935, Judge Nye, for the Court, signed an order to show cause on April 8, 1935, on a notice of motion and verified petition, asking that the order of March 2, 1935, be vacated and set aside; for leave to renew their application for an extension of time to redeem from the mortgage above referred to, for an order granting the petitioners the right to file an amended petition so as to take advantage of the extending Act, then the law of this State, and under which, if passed, the petitioners had always intended to proceed and the probability of the passing of which constituted the reason for a continuance of the hearing set down for February 2, 1935, and justifying the granting of the motion for such continuance."

That hearing was continued until April 13, 1935, at which time the court made an order denying petitioners any relief and discharging the order to show cause. On April 25certiorari issued out of this court to review the orders of March 2 and April 13.

When relators sought further extension of time in their petition of January 23, 1935, they did so pursuant to L. 1933, c. 339, part 1, § 5, 3 Mason Minn. St. 1934 Supp. § 9633-6, which provides that either party "prior to the expiration of the extended period of redemption" may have a previously made order revised and altered "in such manner as the changed circumstances and conditions may require." Another thing to be noted here is the fact that there has been no review by appeal or certiorari of the order of March 2 prior to the application heretofore mentioned for a writ of certiorari. It is obvious that the application for the writ came too late to be within the 15-day limitation fixed by § 9633-7. This was definitely determined in Young v. Penn Mut. L. Ins. Co. 192 Minn. 446,449, 256 N.W. 906. We there held that "the procedure for extension is summary and does not contemplate motions for a new trial." In Mosse v. Mutual Benefit L. Ins. Co. 193 Minn. 496,259 N.W. 19, we held that the court had no power to revise or alter the terms of an extension order after default had existed in the payment of sums ordered to be paid more than 30 days prior to the extended period. That rule was later followed in Koerber v. Thompson, 194 Minn. 654, 260 N.W. 353, and in Butts v. Tellett, 194 Minn. 243, 260 N.W. 308. In Nordmarken v. Ekeran, 194 Minn. 389, 260 N.W. 628, we held that the matter of granting additional time for redemption was discretionary with the trial court.

Petitioners' title to the foreclosed premises passed to the purchaser (respondent here) at the foreclosure sale not later than March 4, 1935, that being the date of the filing of the order of March 2, 1935. The remedial act (L. 1935, c. 47) cannot possibly give life to that which was theretofore a foreclosed right, a right that had ripened into a fee simple title in respondent. True, petitioners had the right to review that order by certiorari. That right had expired when the application was made here for the writ. So that order stands immune to attack. To read into the 1935 act the tolling of the prior statute would be "nothing short of an attempt arbitrarily to take property from one having a perfect title and to subject it to an extinguished claim of another." Stewart v. Keyes,295 U.S. 403, 417, 55 S. Ct. 807, 813, 79 L. ed. 1507.

It follows that the writ must be discharged and the orders here sought to be reviewed affirmed.

So ordered.