10 S.D. 38 | S.D. | 1897
On June 3, 1895, a sale of certain real property was made by the sheriff of McCook county under a judgment entered in foreclosure proceedings, in which Joe Kirby was plaintiff and W. H. Ramsey and others were defendants, for the sum of $657. At this sale Joe Kirby bid in the property for $100, andón June 17th the sale was confirthed, and a deficiency judgment against the defendants in said action for $585.25 was entered. On June 24th the circuit court, upon application of said Ramsey and others, made an order vacating and setting aside said sale, and ordering a resale of the mortgaged premises under the same or an alias execution. From this order the plaintiff, Joe Kirby,-appealed to this court, and the same was by this court affirmed. Kirby v. Ramsey, 68 N. W. 328. Patrick Kirby on June 17th, the day the sale was confirmed, paid to said Joe Kirby the $100 bid by him at the sale, as a junior mortgagee, and took from said Joe Kirby a certificate of redempoion, but was not a party to the proceedings in which the sale was vacated and set aside. The said Patrick Kirby, upon an affidavit showing his interest in the property, obtained from this court a writ of certiorari to the circuit court of McCook county, requiring said court to properly certify to this court the record of the proceedings of the circuit court upon which said order was made. The clerk of the circuit court not only certified up the record in that proceeding, but also the certificate of redemption purported to have been made by Joe Kirby on June 17th; also, certificate of sale made by the
Proceeding to discuss the case upon the merits, it must be borne in mind that the only questions to be considered in this court are whether the court, upop the record before it, exceeded its jurisdiction, or whether that court has failed to regularly
The only other ■ question presented is, did the order made by the circuit court bind Patrick Kirby? This question is virtually settled by the decision of this court in State v. Campbell, 5 S. D. 636, 60 N. W. 32. See, also, Hale v. Clauson, 60 N. Y. 339; Cazet v. Hubbell, 36 N. Y. 677; May v. May, 11 Paige 201. In Hale v. Clauson supra, the court of appeals of New York says: “A purchaser at a sheriff’s sale, although a stranger to the judgment or decree, by his purchase submits himself to the jurisdiction of the court in respect to the sale and purchase.” If such is the rule as to the purchaser, for much stronger reasons it applies to a redemptioner. The proceeding to vacate and set aside the sale is a proceeding between the parties to the action, and third persons, who are not parties to the action, have no legal right to notice. Either as purchasers or redemptioners, such third persons acquire their title from and under the defendant to the action, through the foreclosure proceedings of the plaintiff and any defect in the proceedings that affects them equally concludes them. Notice to such third persons is not necessary to confer jurisdiction upon the court, and its order made without such notice would be valid. It the rights of the redemptioner are not sufficiently protected, he should apply to the court making the order for such modification of the same as will protect his interests. It appears, however, from the record before us, that- the rights of Patrick Kirby were fully protected. We are of the opinion that the circuit court did not in any manner exceed its jurisdiction, and the order made by the circuit court is affirmed.