Firth v. Brack

CANTY, J. Judgment was entered in a mechanic’s lien suit in favor of plaintiff and another lien claimant for the amounts of their respective liens. Plaintiff bid off the property at a subsequent foreclosure sale for the amount of both liens and costs, paying to the sheriff the amount due the other lien claimant, and the sheriff paid this amount over to the latter. Thereafter the court set the sale aside. Thereupon plaintiff made a motion to be subrogated to the rights of the other lien claimant, and to be allowed to retain the latter’s share of the proceeds of another sale. The motion was denied, and plaintiff appeals. Plaintiff made his motion on “all the files, records, and proceedings in said action,” and on the affidavit of plaintiff’s attorney; but only the judgment and affidavit have been returned to this court, and no certificate of either the judge or clerk as to the papers considered on the motion, or on file in the action, has been procured. Respondents urge this as a reason for affirmance. Under the rule laid down in Hospes v. Northwestern, M. & C. Co., 41 Minn. 256, 43 N. W. 180, the objection is well taken, and the order appealed from should be affirmed. So ordered.