Johnson v. Nelson

RICHARDS, J.

This is an appeal from an order made after final judgment setting aside a sheriff’s return of sale for the foreclosure of a mortgage and directing a new order of sale to be issued.

The facts are undisputed and are as follows: The mortgage was duly foreclosed and a decree of sale of the mortgaged premises made and entered, and an order of sale duly issued thereon and placed in the hands of the sheriff for execution. On the day on which the sale was advertised to take place the plaintiff and also one of his attorneys were present at the time and place of sale; the plaintiff personally made a bid of an amount somewhat less than the total sum then due. His attorney also on his behalf made a bid of the total sum due. There were no other bidders. A misunderstanding arose between the sheriff and the plaintiff as to the sum actually bid, the sheriff insisting that he had struck off the property for the amount of the plaintiff’s personal bid. Thereupon, and before the sheriff had made any return of sale, the plaintiff moved the court for an order vacating and setting aside the sale. When this motion came on for hearing, the sheriff not yet having made his return of sale, the court denied the motion. Thereafter the sheriff made his return of sale which, while reciting the fact that the property was sold, returned the order of sale as wh'olly unsatisfied.

[115]

Thereupon the plaintiff moved the court to set aside this return of sale and direct a new order of sale to be issued. Upon the hearing of this motion the court granted the same, and from its order to that effect this appeal has been taken.

[1]

The first point urged by the appellants is that the trial court had no jurisdiction to make the order appealed from, for the reason that the first order of said court denying the plaintiff’s motion to vacate the sheriff’s return of sale rendered the matter

res adjudicate,

and hence the court had no power to grant the plaintiff’s second motion to set aside the return of sale. The point is utterly without merit for two reasons: First, that the two motions are dissimilar in the important respect that at the time the plaintiff’s first motion was made no return of sale had yet been made by the sheriff, and the motion was therefore premature and doubtless was denied for that reason; while said return of sale was on file when the second motion was made, presenting an entirely different situation to the trial court;