Herbage v. Ferree

The defendants have appealed from an order confirming a sale made under a decree of foreclosure. The principal objection made to the confirmation, and the only one urged in this court, is the following: “For the reason that no execution or order of sale has been issued on said judgment or decree for more than five years last past.” The appellants insist that a decree of foreclosure becomes dormant if no steps are taken to enforce it for five years after its rendition, and that in this respect it is like a judgment at law. We can not concur in this view. The supreme court of Ohio, in construing a statute similar to our own, has said: “Section 422 of the Code, which provides when a judgment shall become dormant and cease to operate as a lien on the estate of the judgment debtor, does not appty to a decree for the sale of specific real property.” Beaumont v. Herrick, 24 Ohio St., 445. And again, in Moore v. Ogden, 35 Ohio St., 430, it was held that a decree foreclosing a mortgage was not a judgment within the meaning of section 422 of the Ohio Code, and that such decree *452did not become dormant by a failure to issue an order of sale within five years.

Following these decisions, we recommend that the judgment of the district court be affirmed.

By the Court: For the reasons stated in'the foregoing opinion, the judgment of the district court is

Affirmed.