Herbage v. Ferree

Duffie, C. The defendants have appealed from an order confirming a sale made under a decree of foreclosure. The principal objection made to the confirmation, and the only one urged in this court, is the following: “For the reason that no execution or order of sale has been issued on said judgment or decree for more than five years last past.” The appellants insist that a decree of foreclosure becomes dormant if no steps are taken to enforce it for five years after its rendition, and that in this respect it is like a judgment at law. We can not concur in this view. The supreme court of Ohio, in construing a statute similar to our own, has said: “Section 422 of the Code, which provides when a judgment shall become dormant and cease to operate as a lien on the estate of the judgment debtor, does not appty to a decree for the sale of specific real property.” Beaumont v. Herrick, 24 Ohio St., 445. And again, in Moore v. Ogden, 35 Ohio St., 430, it was held that a decree foreclosing a mortgage was not a judgment within the meaning of section 422 of the Ohio Code, and that such decree [452] did not become dormant by a failure to issue an order of sale within five years. Following these decisions, we recommend that the judgment of the district court be affirmed. Ames and Albert, 00., concur. By the Court: For the reasons stated in'the foregoing opinion, the judgment of the district court is Affirmed.