Smith v. Mingramm

NOURSE, Acting P. J.

This is an appeal from an order of the Superior Court directing the commissioner appointed by the court to execute a deed to the purchaser of certain real property at a sale under a decree of foreclosure of two mortgages. The appeal is presented on a typewritten transcript.

The appellant joined with her husband in the execution of a mortgage on the property on April 11, 1913. The defendants Otto and Minna Paehmayr on April 11, 1921, executed a second mortgage on the same property in favor of Thomas W. Miller, the alien property custodian. On January 22, 1926, this mortgage was duly assigned by the custodian to Walter E. Mingramm. In this suit for fore

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closure of the first mortgage Walter É. Mingramm was joined as a party defendant and then came forward as a cross-plaintiff seeking foreclosure of the mortgage thus assigned to him. Issue being joined, the trial court made its decree ordering the foreclosure of both mortgages in favor of these respective plaintiffs. A commissioner was duly appointed, who made the sale to the respondent Hooper, to whom certificate of sale was duly issued.

Before the expiration of one year from the date of the sale an attorney claiming to represent Mrs. Mingramm paid to the commissioner an amount sufficient to redeem the property from execution sale. This sum the commissioner tendered to the purchaser at the sale, who refused to accept it. After the expiration of the year the court directed the commissioner to execute a deed to the purchaser and such deed was executed and delivered. It is from this order that the appeal is taken on behalf of Mrs. Mingramm.

The respondent, the purchaser at the commissioner’s sale, urges in support of the order that appellant is not a party entitled to redeem. He also has moved to dismiss the appeal on the ground that the appellant is not a “party” aggrieved by the order and also on the ground that the order having been fully executed the questions raised are moot.

The appellant was joined as a party defendant, but the cause was dismissed as to her and she was not thereafter a party to the proceeding. The attorney appearing for her on this appeal filed an affidavit in the court below stating that he appeared for her, but the court, after a hearing upon oral and documentary evidence, recited in its order that this attorney appeared for the court commissioner. The appellant is a resident of Holland and has not in person or by letter of any character made any appearance in the proceedings except as may have been done in the manner above noted.