State ex rel. Anderson v. Kerr

51 Minn. 417 | Minn. | 1892

Collins, J.

In an action brought to foreclose a mechanic’s lien, wherein these relators .were plaintiffs, judgment was duly entered in their favor decreeing a sale of the premises involved to satisfy the amount found to be due on the lien, and that, should there be a surplus arising from the sale, it should be applied in partial or full satisfaction of a mortgage on the premises held by one Quigley, the same being a lien subsequent to that held by these relators. At the sale the premises were sold to relators for a sum sufficient to pay the amount due to them, with the expenses of the sale, and no more. The sale was duly confirmed by the court, and, no redemption being made within the period fixed by law, (1878 G. S. ch. 81, § 34,) relators, as purchasers at the sale, applied to the district court for the final decree provided for in section 36. This application was opposed by Quigley, and on his motion, based upon an affidavit setting forth certain acts of inadvertence and excusable neglect, whereby he had omitted to redeem within the year, the court made its order extending his right for a period of ten days from date, (October 13, 1892,) and directing that he be allowed to redeem from the sale within such time. Thereupon an order to show cause why a writ of mandamus should not issue compelling the court below to make and enter the final decree, as demanded by relators, was made by this court. Passing by all other questions in the case, we come directly to a brief consideration of the right or power of the court to enlarge and extend the time within which redemption can be made, by statute fixed at one year after the date of the order of confirmation. It is contended by respondent’s counsel that the power to so enlarge and extend is a discretionary one, conferred by 1878 G. S. ch. 66, § 125, by the terms of which the district court is authorized, under certain circumstances, to relieve a party from a judgment, order, or other proceeding taken against him; but no authorities are cited in support of the contention that this provision of the statute is pertinent to the subject of redemption, and we are confident that none can be found. The provisions of section 125 refer simply to proceedings taken in court against a party, which proceedings the court, of necessity, and within a proper exercise of its discretion, should have the power to regulate and control. But the right»of redemption is a strict legal right, to be exercised, if at all, in accordance with the terms of statute by which the right is conferred, unless waived or extended by the party whose interests are to be affected. Tice v. Russell, 43 Minn. 66, (44 N. W. Rep. 886;) Hoover v. Johnson, 47 Minn. 434, (50 N. W. Rep. 475.) The exercise of this right is not a proceeding in the action, nor is it a proceeding in court, but wholly independent of either, for the rights of the redemptioner, as well as those of the party from whom redemption is to be made, are dependent upon, and in all respects governed by, the statute. As a general rule, it may be said that when a valid legislative act has determined conditions on which rights shall vest or be forfeited, and no fraud has been practiced, no court can interpose conditions or qualifications in violation of the statute. The courts have no power to relieve against statutory forfeitures. Cameron v. Adams, 31 Mich. 426; McConkey y. Lamb, 71 Iowa, 636, (33 N. W. Rep. 146;) Hyman v. Bogue, 135 Ill. 9, (26 N. E. Rep. 40.)

Let a peremptory writ of mandamus issue.

(Opinion published 58 N. W. Rep. 719.)