160 N.W. 1009 | S.D. | 1917
“Every mortgage of real property containing therein a power of sale, upon 'default being made in the condition of such, mortgage, may be foreclosed by advertisement, in the cases and manner hereinafter specified; provided, that when the mortgagee or his assignee has commenced procedure by advertisement, and it shall be made to appear by affidavit of the mortgagor, his agent or attorney, to the satisfaction of the judge of the circuit court of the county wherein the mortgaged property is situated, that the mortgagor has a legal counterclaim or * * * other defense against the collection of the whole or any part of the amount claimed to- be due on such mortgage, such judge may by an order to that effect, enjoin the mortgagee or his assignee*262 from1 foreclosing such mdrtgiage by advertisement, and direct that ail further proceedings for the foreclosure be had 'in the circuit court properly having jurisdiction of the subject-matter * * *”
This proceeding is neither an action nor a special proceeding in court. It provides a method by 'which a foreclosure can, at the option of the mortgagor, at the proper time and upon a proper showing, 'be thrown into court. The statute does not contemplate that such proceeding shall take the place of air action in equity wherein the right to> equitable relief would be determined upon the issues of fact raised by pleading; the proceeding is one purely ex parte 'before a judge. While the order obtained ma3r form the basis' for an action or proceeding in court, in case such order should be disregarded, yet such statute does' not provide for a court order’. Therefore the order in question, though in form a Court order, must be held to- be an order of -the judge, and, not being an order made in a action or special proceeding in court, it cannot be followed by an order of the court made in the same proceeding, and therefore can only be reviewed by cer-tiorari.