Plaintiff filed his petition to revive judgment and decree rendered against defendant, as administrator of the estate of William Wallace, and in favor of the plaintiff. Said: action was brought to foreclose a mortgage executed by said William Wallace to one John Hogan, and by him assigned to-plaintiff. Decree of foreclosure was rendered in said action, order of sale issued, and the encumbered property was sold thereunder, the plaintiff being purchaser at such sale. The-lands covered by the mortgage, and sold under the order of sale, were lands which had theretofore been entered by the said William Wallace under the provisions of the United States desert land laws. Prior to the making of said mortgage, Walaee had made final proof under Ms desert entry, paid the purchase price, and received register’s receipt therefor, but had not received Ms patent. Sale was made on the fourteenth day of August, 1886; deed from sheriff executed on the 15th of February, 1887. On the eighteenth day of June, 1886, and before-any patent was issued, one Samuel Rippey commenced a contest against said desert entry of said William Wallace of the-lands before mentioned, as being included in said mortgage,^ and so as aforesaid sold under the order of sale upon the foreclosure thereof, in the proper United States land office, alleging;
The petition in this case was filed under the provisions of section 4498 of the Revised Statutes of Idaho, which contains the following: “If the purchaser of property at sheriff’s sale or his successor in interest, fail to recover possession in consequence of irregularity in the proceedings concerning the sale, or because the property sold was not subject to execution and sale, the court having jurisdiction thereof must, after notice, and on motion of such party in interest or his attornej7, revive the original judgment in the name of the petitioner for the amount paid by such purchaser at the sale, with interest thereon from the time of payment at the same rate that the original judgment bore; and the judgment so revived has the same force and effect as would an original judgment of the date of revival, and no more.” The respondent contends that no appeal lies from the judgment rendered by the district court, for the reason that it is not a final judgment, in that the blank for costs in said judgment is not filled. The judgment is in the following words: “This action having been brought on to be heard on the demurrer to the petition herein, and the same having been sustained by the court, and the plaintiff having failed to plead further, and elected to stand on the petition, it is therefore adjudged that the plaintiff take nothing by the said petition, and that the same be dismissed absolutely, and that the defendant do have and recover of and from the plaintiff his costs herein expended, taxed at- dollars, for which execution is awarded.” .This judgment, as before stated, was not
The next contention of respondent is that the case made by tbe petition of plaintiff does not come within the provisions of section 4498 of the Revised Statutes of Idaho. The petition states that, by reason of the cancellation of the said desert entry of William Wallace by the commissioner of the general land office, the plaintiff entirely failed to recover possession of the said lands so as aforesaid sold, and of which he became the purchaser. The purchase was made upon the assumption that the entry of the lands by Wallace was a valid, legal entry; and, he having made final proof thereunder, nothing remained to be done by the government to invest Wallace with the title in fee.