Findley v. Bowers

The question for decision in this case is whether the sale of the mortgaged premises by the sheriff ought to have been confirmed, notwithstanding the objections made by the plaintiff in error. These objections may be summarized as follows :

First. That the pretended decree, under which the order of sale was issued and the sale made, “ was not made or authorized by the court, but the said pretended decree was placed upon the records of this court without authority, and fraudulently, and has not yet been ratified or approved by the court, or signed by the judge thereof.”

Second. “ The said pretended decree has been materially changed and varied from that which was rendered and ordered by the court.” And that “ thb said sale was made under the said pretended and fraudulently changed decree.”

Third. That “ this defendant has paid to Liebengood the full amount of the decree owned by him ” (a decree previously entered in the same court on a prior mortgage, and recognized in the decree in this case as a paramount lien), “ and the defendant is now the assignee and owner of the same.”

Such being the 'substance of the objections to the confirmation, it is seen that no fault whatever is found with the steps taken by the sheriff'in making the sale, and we must presume, therefore, that they were regular. The issue really was as to whether the journal entry spoke the truth.

While it was eminently proper, if there were any reasonable ground for believing that the journal had *76been thus falsified, to bring the matter to the notice of the distinct court as was here done, we must nevertheless hold that the decision of that court on the question is conclusive upon all .the parties. It was within the province of the court to pronounce such judgment as it saw fit, and the approved journal entry thereof is indisputable evidence of what that judgment was. By these objections it was in effect alleged that the journal entry was false; but the answer of the judge, in confirming the sale, with the entry in question before him, was, that it spoke the truth. And this answer is not subject to review here, although the decree itself is.

As to .the distribution of the proceeds of the sale, and the rights of the plaintiff in error therein, as a preferred claimant, which were discussed some what at the bar, no question is raised in this record, as it does not appear that any action by the district court has been either taken or requested thereon. If the plaintiff deems himself entitled to any of the money realized from the sale of the property, he should first bring his claim to the attention of that court by proper motion.

Judgment appirmed.