Italian Homestead Ass'n v. Lewis

ST. PAUL, J. Plaintiff sued out executory process against the defendant, seizing certain properties belonging to him. The Hartman-Salmen Oo. Inc., intervened, claiming a builders’ lien upon ■particular lots embraced in the mortgage, and .asked that said lots be sold separately and not in block. The district judge refused to order a separate sale, and the intervener applied to, this court for relief. Whereupon this court issued an order forbidding the sheriff to sell “confusedly with the other property seized,” the property on which the intervener claims a lien; and thereupon the sheriff proceeded to sell the various parcels separately. The case therefore presents no issue for this court to decide. The relators (interveners) have obtained all that they sought by the writ, to wit, the parcels on which they claim a lien were not sold confusedly with the other property seized; and the plaintiffs have not asked that all the property be sold confusedly, nor could they very well do so until the adjudications made by the sheriff be first set aside, if indeed they be entitled to that relief. The application must therefore be dismissed. We cannot award interveners costs, as prayed for by them, because we are deciding neither for nor against them. We cannot remand the matter to the lower court for further consideration by that court, as asked for by the plaintiff, for the reason that the judge a Quo is powerless to grant or refuse the relief asked for here, to wit, a mandamus, prohibition, or certiorari against himself; and we cannot in this court-pass upon the merits of interveners’ claim for a lien, or upon the validity or propriety of the adjudications made by the sheriff. To do so would be to exercise original jurisdiction, and we have no such jurisdiction in a matter like this. It remains for us, as we have said, only to dismiss the application as presenting nothing which we can pass upon, and the costs must remain as incurred. *97 Decree. The application herein made is dismissed, without prejudice to the ultimate rights of any and all parties. O’NIELL, C. X, is recused.