Ozias v. Renner, 64 N.E.2d 325

64 N.E.2d 325 | Ohio Ct. App. | 1945

This cause is submitted on motion of plaintiff, Clifford W. Ozias, appellant herein, to dismiss as parties-defendant herein C.B. Renner, Harry Moots and Alma Moots, purchasers of the several tracts of land described in the petition, for the following reasons:

(1) They were made defendants by the Probate Court subsequent to the sale of the premises and are not persons required as defendants under Section 10510-15, General Code.

(2) They are not necessary parties to a complete determination or settlement of the questions involved in this case.

(3) They have no controversy adverse to the plaintiff.

The record discloses that on February 20, 1945, the plaintiff filed an application to set aside the sale made under a former order of the Probate Court of Preble county, Ohio; and that on the same date the purchasers filed their motion asking to be made defendants for the purpose of opposing the application, which latter motion was allowed and the purchasers were made defendants. The application to set aside the sale to the defendants was on the ground that the price was wholly inadequate. That application was denied and the sale of the property to these defendants was approved and confirmed by the court.

Section 10510-15, General Code, provides as follows:

"In such action by an executor or administrator the following persons shall be made parties defendant: * * *

"6. All other persons having an interest in such real estate."

The record discloses that it was subsequent to the sale and prior to the confirmation of the sale by the Probate Court that these purchasers were made parties-defendant to the action upon their motion. At this stage of the procedure the defendants were not parties in interest, but, after the sale was approved and confirmed by the court, their interest in the real estate vested and they became necessary parties and are, therefore, proper parties to this appeal.

It was held in the case of Ackerman, Recr., v. Cornell, 14 C.C. (N.S.), 525, 23 C.D., 102, that "a purchaser at a sheriff's sale, under a decree in foreclosure, is sufficiently a party to the action in which the sale is made to prosecute error to the Circuit Court to reverse the judgment of the Court of Common Pleas, upon a motion sustained by said court in setting aside the sale of the real estate made by the sheriff."

Also, in Beckman, Trustee, v. Emery-Thompson Machinery SupplyCo., 9 Ohio App. 168, it was held that a purchaser at a sheriff's sale can prosecute error to reverse a judgment sustaining the motion to set aside such sale.

In the case of Bates v. State, ex rel. Fulton, Supt. of Banks,130 Ohio St. 133, 198 N.E. 34, the court held that a purchaser at a judicial sale becomes a party to such proceeding for the purpose of protecting himself and correcting mistakes as to matters connected with the sale, and that he may not subsequently resort to a collateral attack upon the entry of confirmation relating thereto.

It is our conclusion that these defendants are proper parties in this action, and the motion is accordingly overruled.

Motion overruled.

HORNBECK, P.J., GEIGER and MILLER, JJ., concur.