Dell v. Estes ( 1882 )

By the Court,

Watson, C. J.:

The appellant, Sidney Dell, claiming as assignee of Ira E. Powers, caused an execution to.be issued on a judgment obtained by Powers against Levi Estes and C. M. Carter, in the county court of Multnomah county, on April 3,1876. The execution was issued January 21, 1882, came into the hands of the sheriff of said county on the 23d day of said month, and on the day following was levied upon a large quantity of real property,- situated within the city of Portland, in said county. A sale of the property so levied upon was had under said execution, On March 11, 1882, at which the appellant became the purchaser, and on the 22d day of said month the execution was duly returned and filed with the clerk of said county court. On the 3d day of April following, that being the first day of the next regular term of said court, after the return of the execution, Dell appeared, and moved, as assignee of the judgment, that the sale be confirmed. On the same day, J. P. O. Lownsdale appeared, as assignee in bankruptcy of the estates of Estes and Carter, and filed objections to the confirmation of such sale. It was shown in these objections, that Estes and Carter had been adjudged bankrupts July 19, 1876; that he had been appointed assignee of their estates February 19, 1878, and that long prior to the issuance of the execution upon which the sale to Dell had been made, the register in bankruptcy had duly assigned all the property of Estes and Carter, including that sold on said execution, to the said Lownsdale, as such assignee.

The objections filed by Lownsdale also disclosed some irregularities in the proceeding of sale, and set forth the general condition of the property, to show that the manner of the sale was improper. Dell moved to strike the objections from the record, because not filed in time, and for other reasons. The county court refused to confirm the sale, and Dell appealed to the circuit court, when the same decision was rendered. From this decision he appeals to this court. We think his right to appeal, under the statute, is clear. The order of the county court, denying his motion, and refusing to confirm the sale, was “ a final order affecting a substantial right, and made, in a proceeding after judgment,” within the meaning of sec. 525 of the civil code. (Code, subdiv. 1, sec. 293; Koehler v. Ball, 2 Kansas, 160; Moore v. Pye, 10 id., 246.)

Subdiv. 1, sec. 293, declares that the plaintiff in a writ of execution “shall be entitled, on motion therefor, to have an order confirming the sale, at the term next following the return of the execution, or if returned in term time, then at such term, unless the judgment debtor, or in case of his death, his representative, shall file with the clerk, ten days before such term, or if the writ be returned in term t'me, then five days after the return thereof, his objections thereto.” The return, in the present instance, showed upon its face regular proceedings throughout in making the sale, and it was the imperative duty of the county court, under the provisions of the foregoing subdivision, to grant the motion to confirm the sale, unless it had a right to consider the objections interposed by Lownsdale, the assignee in bankruptcy. We assume that Dell as assignee occupied the same position in regard to the judgment that Powers did previous to the assignment. (Freeman on Executions, sec. 21.) Whether Lownsdale, as assignee of the estates of Estes and Carter, could, upon a proper showing, have obtained leave of the county court to file his objections, after the time for doing so allowed by the statute had elapsed, under sec. 100 of the civil code, we are not called upon to decide, as no attempt was made to get leave, and no order was made concerning the matter. Without such leave first obtained Lorn the county court, they were improperly placed on the files, and Dell’s motion to strike them out should have been sustained. That court had no right to consider them, and its duty to grant the order of confirmation was plain.

Judgment reversed.