Farmer & Sons v. Sasseen

Seevers, J. 1. practice in supreme court: abstract not denied by amendment taken as true. I. Counsel for the appellees insist in argument that there was no bill of exceptions or certificate of the trial judge setting out the evidence introduced, and, therefore, we have nothing before us which can , be determined. ' The abstract states that it contains “all the pleadings, evidence and other proceedings in this cause.” There is no amended abstract denying this statement. The only denial is in the argument of counsel. In the absence of an amended abstract denying the statements contained in appellant’s abstract, the latter is deemed to be true. White v. Savery, 49 Iowa, 197. [112] 2. JUDICIAL sale: satisfaction of judgment by: sale set aside: judgment restored. II. It is provided by statute that, where real estate is purchased at sheriff’s sale, and the judgment on which execution issued was not a lien thereon, which fact was unknown to the purchaser, the sale shall be set aside on motion. Code, § 3090. The appellees insist that plaintiffs’ judgment was a lien, and that by the purchase the plaintiffs obtained the right of redemption. In other words, it is claimed that the Singmaster lien was the prior lien only, and that defendants had the legal title on which plaintiffs had a lien, junior to that of Singmaster. This being so, it is insisted that the plaintiffs are not entitled to the relief asked, and Hamsmith v. Espy, 19 Iowa, 19 Iowa, and 444 Holtzinger v. Edwards, 51 Id., 383, are cited in support of this position. The cases cited are distinguishable from, the one at bar in at least two particulars. In the former cases, the purchaser .had notice, actual or constructive, at the time he purchased, of the other and prior liens. In the case at bar, the plaintiffs did not have such notice. Whether this should make any difference, we have no occasion to determine. The relief asked in the cited cases was to set aside the sale. In this case the sale has been set aside by a competent court, and it is not claimed that such court did not have jurisdiction of the subject-matter and of the parties. This being so, it follows that the decree of the circuit court is not void, but voidable at most, and, as it lias not been appealed from, it remains in full force. Now, whether the judgment of the circuit court is right or wrong is immaterial. Rut, so far as these parties are concerned, it must be regarded as a binding adjudication on them, and their rights measured thereby. We then have the case where the sale has been judicially set aside, and it seems to us that it necessarily follows that the satisfaction of the judgment which followed the sale, and was entered of record by reason thereof, should be set aside. The satisfaction of the judgment depends on whether there was a sale. The latter having been set aside, in legal effect there is no sale to support the satisfaction of the judgment. [113] Whether the cii’cuit court ought to have set aside the sale, we do not determine. The district court erred in overruling the motion. Reversed.