156 Iowa 91 | Iowa | 1912
The action in which the present auxiliary proceeding has been instituted was one brought by the plaintiff to foreclose a mortgage given to it by defendant Kunseh upon a certain described tract of land to-which junior lienholders were made parties. A decree of foreclosure having been entered against Kunseh as mortgagor and the lienholders as defendants, there was an execution sale of the mortgaged property on March 12, 1910, to the plaintiff for the amount of the judgment. "Within nine months after the date of the sale, one Meredith took an assignment of the rights of one of the lienholders made a party to the original action and attempted to effect redemption from the sale. After nine months and within a year from the date of the sale the principal defendant, Kunseh, executed a conveyance of the premises to one Klemm, who, on February 28, 1911, applied to the clerk of the court to redeem the premises from s-aid sale, without payment of the amount of the claim under which Meredith had attempted to redeem, which application was refused in writing on, the ground that redemption had already been made by Meredith. With reference to Meredith’s attempted redemption, it -appears that on the last day of the nine months’ period allowed for - redemption by creditors (see Code, sections 4045-4050) Meredith paid
The printed record contains no showing that the amount necessary to redeem from the original' sale was ever deposited with the clerk, and in the absence of such showing the judge properly refused to entertain appellant’s application, for the statute evidently contemplates not merely a tender and offer to pay which might be sufficient in an action in equity, but an actual deposit of the amount necessary to make redemption. There is nothing in the record to indicate that if appellant had offered to deposit the amount the clerk would have refused to receive it. The refusal of the clerk to accept the tender and allow redemption was not a refusal to accept a deposit.
In response to this motion of appellee, the appellant insists that the motion goes to the jurisdiction of the court and should have been made and served upon the appellant not less than ten days before the date assigned for the submission of the cause (rules section 33; 33 G. A. chap. 206), whereas the motion was not served until three days before the date on which the cause was set to be submitted. But we think the motion does not raise a question as to the court’s jurisdiction, but presents only a reason why the appeal should be dismissed on the ground that appellant was no longer entitled to maintain his appeal. However this may be, if we should disregard the motion we should have no showing whatever before us that appellant ever made any deposit with the clerk of the amount which, according to his contention, was necessary to entitle him to redeem from the execution sale, and he was not therefore entitled, so far as this record shows, to have an order of the court under Code, section 4057, sustaining his right to make redemption. That section which provides a summary proceeding for determining whether an attempted redemption is sufficient and should have been recognized by the clerk contains the express provision that the money paid to the cerk in the attempted redemption shall be held by him subject to the order of the court; and, necessarily, if the applicant who is denied relief desires on appeal to have the order of the court reviewed to the end that the court should be ordered to hold the attempted re
Even if under the sections relating to motions and orders above referred to the appellant was entitled to an order on the clerk, he certainly was not entited to such order until he had complied with the statutory requirements including the payment into the clerk’s office of the amount necessary to redeem (Code, section 4051), and as already indicated, if the appellant ever made a payment into the clerk’s office for this purpose, he subsequently withdrew the sum deposited before he secured the right upon which he relied, and thereby defeated any attempt which he may have made to get a summary order.
The order of the lower court denying plaintiff any relief in the proceeding instituted by him is therefore affirmed.