Wenning v. Peoples Bank Co. ( 1949 )

By the Court.

This.is an ¡appeal on;questions of law from a: ¡judgment of the Common Pleas ¡Court ¡of Mercer County,- in an action wherein Joseph ¡Ge Wenning, appellant, was ¡plaintiff,, and the appellees, The Peoples: Bank of Coldwater and other's, were:defend! ants.-.-

A jury-having been waived.by the parties-,.¡this cause was submitted .to the court without the- intervention /of a.jury. - The.court found for the defendants/¡rendered-final ¡judgmentdn thbir. favor.-and dismissed; ¡plaintiff petition. That is the judgment from which this; appeal is.taken.

The action is one in which the plaintiff seeks :to: have set aside.asvoid, certain-judgments rendered and ¡proceedings had/ and conveyance of real ¡estate ¡authorized in an. action in the Court of Common Pleás, i wherein The Peoples: Bank Company of Coldwater,’¡one- of the defendants' herein, -was. one, of the plaintiffs/¡and the plaintiff ¡herein was. one. of the-¡defendants,: the action being for determination of-liens; the- marshaling of liens, foreclosure of mortgage and other equitable relief, and being canse. No. 12534 in such'Couft-of Common.Pleas:

The Common Pleas Court, in which the'foreclosure ■action, cause Number 12534; was pending, was-a court, of general jurisdiction and as such it had jurisdiction both of the subject matter of the action and of the parties to the action.

At the time such action in foreclosure was commenced on September 7,1934, there was no action pending in the federal court or elsewhere, which in any way precluded the Common Pleas Court from fully exercising its jurisdiction in the foreclosure action.

The plaintiff in the instant case did not file his petition in the federal court, as a farmer-debtor, until October 2, 1934, and that petition was dismissed on his application, on August 6, 1935.

On January 26, 1938, at a time when there was no petition or action upon the part of the plaintiff pending in the federal court, which in any way precluded the Common Pleas Court from fully exercising its jurisdiction in the foreclosure action, the Common Pleas Court awarded judgment to the Federal Land Bank of Louisville, Kentucky, ordering foreclosure, appraisement and sale of the real estate involved in such action, being the real estate described in the petition herein.

That is one of the judgments sought to be set aside in this action.

On January 28, 1938, after such judgment was awarded, the plaintiff herein filed a new farmer-debtor petition in the federal court.

Three days later, the clerk of the Common Pleas Court, pursuant to the judgment awarded on January 26, 1938, issued an order of appraisement and advertisement for sale of the premises to the sheriff of Mercer county, Ohio.

Thereafter, the sheriff proceeded to have the real estate appraised and to advertise the same for sale, and on March 12, 1938, conducted a public sale thereof, of which he returned his report to the court on March 13, 1938.

On October 10,1938, the federal court dismissed tbe farmer-debtor petition of plaintiff and ordered all stay orders theretofore entered thereunder set aside and held for naught.

On December 17, 1938, after the dismissal of plaintiff’s farmer-debtor petition and the setting aside of all stay orders entered thereunder, and at a time the Common Pleas Court was not in any way precluded from fully exercising its jurisdiction in the foreclosure proceeding, it rendered judgment confirming the sale of the real estate in such foreclosure action to John G. Weigel, in conformity with the sheriff’s report of sale.

That is the other judgment the plaintiff seeks to. set aside in the instant action.

On December 29, 1939, following the last-mentioned judgment, and pursuant thereto, a deed for such real estate was executed and delivered to the purchaser thereof, and a writ of possession was issued by the Common Pleas Court, which was executed by the sheriff of Mercer county, Ohio, on February 25, 1939,. bv placing the purchaser of the real estate in possession, of the premises. .

As the Common Pleas Court, on January 26, 1938, was free, as hereinbefore mentioned, to fully exercise its jurisdiction in the foreclosure action, the judgment of foreclosure rendered by it on such date constituted a proper exercise of jurisdiction by it, and such judgment may not be set aside in the instant action.

The appraisal, advertising for sale and sale of the real estate by the sheriff were not judicial acts-, but merely ministerial acts, the performance of which was not inhibited, prohibited or precluded in any way by reason of the filing by plaintiff, of a new farmer-debtor petition on January 28,1938. Such acts were therefore performed in due course of law.

The appraisal, advertising for sale and sale of the real'- .estate ■ by. the sheriff not being judicial, acts but • merely 'ministerial ’ acts, the Common Pleas Court on December 17,1938, being then free to fully exercise its jurisdiction in such foreclosure proceeding, had jurisdiction"! and power.to.render judgment confirming;such Sale;-, and its judginent may not be set aside in"'this aetiomR

Furthermore,, if such acts of the sheriff in the respects mentioned had been wholly void, the. action of the court in confirming such sale wás within, its jurisdictiori and power and was hot'void but merely voidable, arid'subject to'attack, only through an appeal prosecuted from such judgment and not by separate action such as the plaintiff seeks to maintain.

The deed to purchaser which the plaintiff seeks to set aside was executed and delivered in conformity with the judgment of December 17, 1938, and was valid in every respect and may not be set aside in this action.

The writ of possession which the plainliff seeks to set aside was issued and. executed in conformity with the judgment of December 17, 1938, and was valid in every respect and may not be set aside in this action.

The other relief the plaintiff seeks is wholly dependent on plaintiff’s claim that the judgments, deed of conveyance and writ of possession hereinbefore mentioned, are invalid. As they are All valid, the plaintiff is not entitled to any relief in the premises.

\For the-reasons-'-mentioned,---the judg'-merit of the Oommoii Pleas; Court is affirmed átfhe costs .of'plaintiff arid-the cáüse remanded for execution.

Judgment affirmed.'

Guernsey, P. J., Middleton and Jackson, J J., concur.