Epitomized Opinion

Publish-ed Only in Ohio Law Abstract

The Morris Plan Bank obtained a judgment against Kautz an the Municipal Court of Akron. Later a levy was made upon certain real estate by the sheriff of the Common Pleas Court of Summit county. The real estate was advertised and sold to one Simmons for the sum of $4,335. After making an initial payment of $100 Simmons entred into possession of the property. The sale was confirmed April 7, 1923. Subsequently said purchaser discovered that the property was heavily mortgaged and then brought an independent action in the Common Pleas Court in chancery to have said sale vacated and set aside.

The case was heard by a different judge, and the sale set aside. At a subsequent term a motion was filed by Kautz to vacate said order setting aside and hold for naught said confirmation of sale. The court refused to hear the motion, and upon application, struck said motion from the files. Kautz prosecuted error, claiming that he was not accorded a hearing on his motion. In sustaining the judgment of the lower court the Court of Appeals held:

1. As the plaintiff participated in the hearing and excepted to the proceedings of the court setting aside the confirmation, it was his duty to invoke his ordinary remedy, and his subsequent action was an attempt to substitute another method of procedure for the one usually followed and pointed out by the law in that, instead of having the matter reviewed, he was attempting to have a rehearing upon the matters and things passed upon by the Court of Common Pleas.