27 Minn. 376 | Minn. | 1880
Appeal from what the statute (Gen. St. 1866, c. 81, § 33; Gen. St. 1878, c. 81, § 36,) designates a filial decree in an action to foreclose a mortgage. The objection is made, by motion to dismiss, that an appeal will not lie from such a decree; or, if one will lie, it must be
An important question in the case is, can this court, upon an appeal from the so-called “final decree,” consider alleged, errors in the judgment directing the sale, or must an appeal from that judgment be brought to secure a review of it? This must depend on the question which is to be deemed the final judgment determining the action, and settling-the rights-of the parties to it. The question is not difficult to answer. The judgment directing the sale (Gen. St. 1866, c. 81, § 26; Gen. St. 1878, c. 81, § 29,) adjudges the amount due, with costs and disbursements, and the sale of the mortgaged premises or some part thereof to satisfy said amount, and directs the sheriff to proceed and sell the same, etc. This judgment determines all the issues in the action, and provides just the relief to which the plaintiff is entitled. When it is entered, all controversy as to the respective rights between the plaintiff and the several defendants with respect to the mortgage and the right to enforce it is determined. All that follows it —the sale, report of sale, confirmation, etc. — are merely to-carry into effect and enforce the determination of the rights of the parties which the judgment makes. The “final decree” does not determine any issue, nor any of the merits-between the parties, nor adjudicate any of the rights between, them as parties, nor contain any provision which affects the relief to which the plaintiff is entitled. Before it can be entered, plaintiff must have got all the relief he is entitled to-in the action. ■ The property has been sold, and the proceeds are presumed to have been applied as directed by the judgment. It is not a judgment upon the matters involved in.
The judgment for the sale was entered November 6, 1876, the sale under it made December 23, 1876, and the report of sale was confirmed January 6, 1877. As appears by the report, the plaintiffs in the action were the purchasers. Application by plaintiffs for the final decree was noticed for October 28, 187», long after all rights of redemption were barred by lapse of time. The decree was entered the same day. The decree is, of course, taken to be correct; a party seeking to reverse it must show that it is erroneous, and that the error prejudices him.
The defendant Allis, appellant here, alleges it to be erroneous, in that it adjudges the title to be in defendant Davidson, who was not the purchaser; and it does not appear that he was the assignee of the purchaser. The decree was entered on the motion of the plaintiffs, who were the purchasers. So
It is also objected that the notice of application for the decree was given by plaintiffs, and that under that notice
Decree affirmed.