9 S.D. 197 | S.D. | 1896
April 17, 1895, in this, an action to foreclose a real estate mortgage, plaintiff recovered a personal judgment against defendants for $657, and the usual decree in such cases. Execution issued, and on June 3d plaintiff purchased the mortgaged premises for $100. J une 6th the sheriff made report of
The law providing the method of appeals to this court, enacted in 1887 (Laws 1887, Chap. 20), having been substantially copied from the statutes of Wisconsin, the territorial legislature will be presumed to have adopted it with the construction placed upon it by the court of last resort in that state. Randall v. Burk Tp., 4 S. D. 337, 57 N. W. 4. It was there held that orders setting aside sales in foreclosure proceedings are appealable. Jessup v. Bank, 15 Wis. 604; Carney v. Railway Co., Id. 503. This court has, in effect, reached the same conclusion. Bailey v. Scott, 1 S. D. 337, 47 N. W. 286. The right of appeal depends upon the statute. An order may be appeal-able, although made in the exercise of a legal discretion, which will not be reviewed by this court except in cases of abuse. Weber v. Tschetter, 1 S. D. 205, 46 N. W. 201. If an appealable order involve an exercise of discretion by the court below, it will be affirmed here, unless an abuse of discretion is shown, but the appeal will not be dismissed.
In the second circuit, whence comes this appeal, the following rule of court is in force: “The sheriff or other officer
The foregoing rule of court gave no notice to interested parties they would not have had without it. It prevented the court from confirming the sale for 10 days after the report was filed, and may have precluded objections to the sale appearing upon the face of the record, but certainly did not deprive a party of his right to object for reasons not so appearing, and which could have been considered only on a motion to vacate the sale. For such reasons, he has a reasonable time in which to make his motion. In sales under decrees, and which may therefore be called “judicial sales, ” when the proceedings are re
Was there any abuse of discretion in the case at bar? Defendants’ motion to vacate was heard upon the affidavit of one of the defendants and the affidavit of plaintiff. It will not be necessary to state all the allegations contained therein. There are, we think, enough undisputed facts to justify the order made by the learned circuit judge. The mortgaged premises were worth $1,000 in cash when purchased by plaintiff for $100. Defendants are responsible. They were advised by an attorney at law, and believed the property would be bid in for the full amount of plaintiff’s claim. They allege that they were led to this belief by the statements of plaintiff, but he denies having given any occasion for such belief. Before this action was commenced, they had conveyed the land to another, who had assumed payment of the mortgage, which was the first lien thereon. The mortgage was originally given to secure a note of $525. When the decree of foreclosure was rendered, there was due plaintiff $657. Only $80.65 were paid on the judgment by the sale, leaving a'deficiency of $586.25. It is true that inadequacy of price will not alone warrant the setting aside of a sheriff’s sale (Bank v. Fair Ass’n, 2 S. D. 145, 48 N. W. 852); but other circumstances may exist which, in connection with in