Scott v. Hurley

DAVIS, J. In an action to foreclose a mortgage upon real estate, the appellant, the appellees, and other persons claiming lien or interest therein were made parties defendant and duly served with process. Failing to answer, default was entered against them, and under a decree of foreclosure made in the case the mortgaged premises were sold for an amount which was $2,510.03 in excess of the plaintiff’s claim. This surplus was paid into court hy the sheriff, whereupon the appellee P. T. Hurley filed an application in said action for [86] an order directing the payment to him of said surplus, claiming to he entitled thereto by virtue of his interest in said premises. Upon notice of said application, the appellant, H. B. Scott, and other defendants also appeared and respectively asserted claim to said fund. On a hearing to determine the rights and priorities of the several claimants to said fund the evidence introduced was principally documentary. The court made an order distributing and awarding said surplus to the appellees, P. T. Hurley and D. A. Tyrrell, and it is [from this order that the appeal is taken. Two propositions of error are assigned. The first is predicated upon the refusal of the court to set aside the sheriff’s sale of the property, and relates to a matter which is not before us for review, it plainly appearing from the record and bond that no appeal has been taken from any order of the court denying a motion or application to set aside the sale. The second proposition of error is the disallowance of the appellant’s claim to said surplus fund and the distribution thereof to the appellees. The order of the lower court making disposition of said fund was based upon findings of fact, which are embodied in the record. An inspection of the record discloses that various matters of documentary evidence, referred to as having been introduced on the hearing in the court below, have not been brought to this court. It being manifest that there has been a failure to preserve all of the evidence, it must be presumed that the evidence before the lower court was sufficient to sustain the findings as made. These findings fully support and warrant the order of distribution which the court made, and the same is accordingly affirmed. Street, C. J., Sloan, J., and Doan, J., concur.