Dodge v. Allis

Gilfillan, C. J. Appeal from what the statute (Gen. St. 1866, c. 81, § 33; Gen. St. 1878, c. 81, § 36,) designates a filial decree in an action to foreclose a mortgage. The objection is made, by motion to dismiss, that an appeal will not lie from such a decree; or, if one will lie, it must be [381] taken as from an order — within 30 days. . Whether it is to-be deemed a judgment or order, inasmuch as legal rights are or may be determined by it, there is undoubtedly- a right of appeal; and, although it is not designated as a judgment but- as a decree, as jt has in its effect upon the matters determined by it, and in the mode of its entry, all the essentials of a judgment, it should be appealed from as such. The motion to dismiss is denied. An important question in the case is, can this court, upon an appeal from the so-called “final decree,” consider alleged, errors in the judgment directing the sale, or must an appeal from that judgment be brought to secure a review of it? This must depend on the question which is to be deemed the final judgment determining the action, and settling-the rights-of the parties to it. The question is not difficult to answer. The judgment directing the sale (Gen. St. 1866, c. 81, § 26; Gen. St. 1878, c. 81, § 29,) adjudges the amount due, with costs and disbursements, and the sale of the mortgaged premises or some part thereof to satisfy said amount, and directs the sheriff to proceed and sell the same, etc. This judgment determines all the issues in the action, and provides just the relief to which the plaintiff is entitled. When it is entered, all controversy as to the respective rights between the plaintiff and the several defendants with respect to the mortgage and the right to enforce it is determined. All that follows it —the sale, report of sale, confirmation, etc. — are merely to-carry into effect and enforce the determination of the rights of the parties which the judgment makes. The “final decree” does not determine any issue, nor any of the merits-between the parties, nor adjudicate any of the rights between, them as parties, nor contain any provision which affects the relief to which the plaintiff is entitled. Before it can be entered, plaintiff must have got all the relief he is entitled to-in the action. ■ The property has been sold, and the proceeds are presumed to have been applied as directed by the judgment. It is not a judgment upon the matters involved in. [382] the action. The application for the decree and the entering of it, though done in the action, is not a proceeding between the plaintiff and the defendants or any of them, or between any of the parties to the action, as parties. It is a proceeding on behalf of the purchaser, whoever he may be, as purchaser. The decree is for his benefit, and not for the benefit of any party to the action. Any controversy which may arise on the application must be between him and one or more of the parties. No controversy between the parties to the action, in their character of such parties, can then be determined. The'provision for such a “final decree” may at first sight seem singular, yet it is undoubtedly a wise provision. It is intended to determine in the original action, as between the purchaser and all the parties to the judgment for the sale, that there has been no redemption, and to afford to the purchaser record evidence in the way of a decree or judgment, conclusive as to all the parties, that the title is in the purchaser free from any right to redeem. On an appeal from the “final decree” no error can be alleged against the judgment for a sale. To review that judgment an appeal must be taken from it. The judgment for the sale was entered November 6, 1876, the sale under it made December 23, 1876, and the report of sale was confirmed January 6, 1877. As appears by the report, the plaintiffs in the action were the purchasers. Application by plaintiffs for the final decree was noticed for October 28, 187», long after all rights of redemption were barred by lapse of time. The decree was entered the same day. The decree is, of course, taken to be correct; a party seeking to reverse it must show that it is erroneous, and that the error prejudices him. The defendant Allis, appellant here, alleges it to be erroneous, in that it adjudges the title to be in defendant Davidson, who was not the purchaser; and it does not appear that he was the assignee of the purchaser. The decree was entered on the motion of the plaintiffs, who were the purchasers. So [383] •far as appears, they were the only persons who then had any interest in the title which passed by the sale. If they consented that the title should, nevertheless, be vested by the decree in any other person, it was a matter between them and such person. • It is not apparent how any other party to the action, whose right of redemption was then barred, could be prejudiced by it. Appellant claims that, to justify the decree in vesting the title in Davidson, there must have been an assignment to him from the purchaser; and that such ■assignment to him, he being the debtor and mortgagor, would have operated as in favor of appellant, his grantee of an undivided half of the property subsequent to the mortgage, as a redemption from the sale; and in that case a decree vesting the entire title in Davidson as against him could not be entered, and the entering it was therefore error prejudicial to him. This argument rests, not on a state of facts shown by the record, but one which has only assumption and conjecture to sustain it. • First, it does not appear that, prior to the actual entry of the decree, there was anything between plaintiffs and Davidson in the nature of an assignment. Further, if that had appeared, there is nothing to show it was made at such a time that it would take effect as a redemption, nor is there •anything to show that Davidson owed Allis any duty to redeem. In the pleadings between plaintiffs and Allis in the action to foreclose, a conveyance of an undivided half of the property by Davidson to him, subsequent to the mortgage, is alleged by Allis in his answer, and admitted by plaintiffs in their motion for judgment. But that did not conclude Davidson, nor would the answer of Allis and the admission of plaintiffs be evidence of the fact as against him. In that action no issue of the kind was tendered to him, and, no situation of the action prior to the judgment for sale occurs to us in which it could be, so that it could be litigated and determined between them. It is also objected that the notice of application for the decree was given by plaintiffs, and that under that notice [384] only a decree vesting the title in them, and not one vesting it in some one else, could be entered. The purchaser or his-assigns should make the application, and, of course, he must give the notice. A notice by one not holding, at the time of serving it, that position, would not do. Whether, upon his assigning after the notice, the proceeding would have to drop- and be renewed by the assignee, or the application could still be made by the party serving the notice, for the benefit of his assignee, we do not find it necessary to determine. But we see no reason why, the notice and application being served and made by the right person, he may not on the hearing-request a decree vesting the title in any one he may name, and the decree be so entered — certainly, so far as the other' parties in the action, in their character as such parties, are concerned. Decree affirmed.