1. PRACTICE: demurrer: motion to disolve injunction. 2 _._. -• I. When the cause came on for consideration in the District Court, appellants insisted that the court should first determine the motion to d'is-solve the injunction, upon the ground that it was first filed and had been set down for hearing by the Circuit Court. The court refused to first hear the motion to dissolve the injunction, but took up and determined the demurrer to the answer. Of this action of the court defendants complain. This was a matter purely within the discretion of the nisi pjrius court. Besides, one of the grounds of the motion to dissolve was that the answer fully denies and disposes of all the equities in the petition. The natural and proper order was first to dispose of the demurrer and determine whether or not the answer interposed any defense. Sections 2640 and 2641, cited and relied upon by appellants to establish the proposition that a motion must be disposed of before a demurrer, apply to motions assailing pleadings and have no reference to a motion to dissolve au injunction.
3. JUDICIAL sale: joint owners: satisfaction of judgment. II. The demurrer to the answer was properly sustained. Felkner bid off the north half of the lot in question, and byhis purchase he became entitled to it. He is in no way concerned with the fact that Mrs. Stephenson did not concur in or assent to the plan of division. That is a matter between her and Mrs. Miller. If a debt, for *463which Mrs. Stephenson and Mrs. Miller were jointly liable, has been wholly satisfied out of the property of Mrs. Stephenson, of course she will be entitled to reimbursement from her co-defendant. But that does not affect the validity of the sale. It does not even appear from the answer that Eelkner was notified before his purchase that Mrs. Stephenson did not assent to the plan of the division.
5.___: payment of judgment. Under the decree of foreclosure and the law, it was the duty of the sheriff, as far as practicable, to sell only enough of the property to satisfy the mortgage. Code, § 3326. The sheriff might, upon his own motion, without any division, have offered and sold the property just as he did. When the balance over Felkner’s bid was paid by Annie E. Miller and her husband, the judgment was satisfied, and there was no authority to proceed further under the execution. Section 3089 of the Code provides that “when the purchaser fails to pay the money when demanded, the plaintiff or his attorney may elect to proceed against him for the amount; otherwise the sheriff shall treat the sale as a nullity, and may sell the property on the same day or after a postponement as above authorized.” But in this case an amount more than sufficient to pay all the costs was paid by the judgment defendants, and the property was bought by the judgment plaintiff. No money was to be paid by him. Nothing was to be done but to enter satisfaction of the judgment. Eelkner had no right to determine that the sale was illegal, nor to call upon the sheriff to determine that fact. This is a judicial, not a ministerial, act. The bid of Eelkner and what was paid by the Millers, having amounted to the whole sum of the judgment, interest and costs, the sheriff was not authorized to make a further levy upon the property. The inj unction was properly made perpetual.
Affirmed.
AI-generated responses must be verified and are not legal advice.
