McDermot v. Barton
Before: Searls
Synopsis
Foreclosure of Mortgage — Jurisdiction — Sale by Commissioner— Pleading—Prayer of Complaint.—The court has jurisdiction in an action to foreclose a mortgage to order a sale of the mortgaged property by a commissioner, although the prayer of the complaint follows the usual form and asks for a sale of the mortgaged property by the sheriff, the essence of the prayer being only for a judicial sale.
Id.—Variance Between Decree and Order Appointing Commissioner— Amendment.—The fact that the decree as entered by the court ordered the encumbered property to be sold by the sheriff, while an order made and entered on the same day appointed a commissioner to discharge the same duty, is an oversight of the court, not calling for an appeal, and may he remedied at any time by a simple motion to amend and correct the decree by striking out the word “sheriff,” and inserting “commissioner, ” wherever they occur in the decree.
Id.—Constitutional Law—Power to Appoint Commissioners—Uniformity of Law.—Section 726 of the Code of Civil Procedure, conferring upon the court authority to appoint commissioners to sell mortgaged property, is not in violation of the fifth section of article XI of the constitution, requiring that the duties of a sheriff shall be prescribed by general and uniform laws.
Id.—Duties oe Sheriff.—It is no part of the duty of a sheriff, as such, in the absence of statutory provision, to sell property under a sale in foreclosure, and he has no duty to perform in case of sale of real property under foreclosure, where the court appoints a commissioner to make such sale by authority of law.
Id.—Authority of Court in Foreclosure Cases—Discretion.—In cases of foreclosure of mortgages the court is authorized to appoint a commissioner to sell the encumbered property, in every case, at its discretion.
Searls, C. This is an action for the foreclosure of a mortgage.
The cause was tried by the court, written findings signed, dated June 2, 1894, ordering a decree of foreclosure and sale of the mortgaged property.
A decree of foreclosure ordering, among other things, a sale of the mortgaged property by the sheriff of the county of Fresno (the county in which the action was pending and in which the mortgaged property was situate) was signed by the judge of the court and is dated June 2, 1894.
The findings and decree were not filed until June 16, 1894, and, it appears, although dated June 2d, were not in fact signed until June 16, 1894.
On the sixteenth day of June, 1894, the findings and decree were filed, and also an order appointing J. F. Church as a commissioner to sell the mortgaged premises in the manner provided by law for a sale of like property by a sheriff upon execution, etc.
[196]The order recites as follows: “ This being the day and hour set for presentment to the court of the findings and decree herein, for its examination and signature, due notice of the same having been given to all the attorneys for the defendants, the same were duly presented to the court, and after examination the court, being fully advised in the premises and satisfied of the correctness thereof, and no objection being raised by any of the attorneys for the defendants, now signs and files the findings and decree herein, and it is hereby ordered,” etc. Then follows the order above mentioned appointing a commissioner.
Plaintiff in the foreclosure suit appeals from the order appointing a commissioner to sell the mortgaged property.
No objection is made to the form of the order appointing a commissioner.
Section 726 of the Code of Civil Procedure, as amended in 1893, provides that: “The court may, by its judgment, or at any time after judgment, appoint a commissioner to sell the encumbered property.”
The subsequent portion of the same section provides that the commissioner, when appointed, shall possess the powers and be subject to the duties of sheriffs in like cases.
The next section provides the mode in which the commissioner shall qualify, and his compensation, which shall not exceed ten dollars.
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