Post v. Foote

[240] After stating the facts, MINER, J., delivered the opinion of the court. The respondents contend that the appeal should be dismissed because the order appealed from is not a final judgment, and that this court has no jurisdiction of the case. This appeal is from an order made by the district court vacating and setting aside the sale made upon an execution issued by that court upon a judgment rendered therein on an appeal from a justice of the peace. By Sec. 7, Art. 8, of the Constitution, district courts have original jurisdiction in all matters not excepted in the Constitution. Sec. 9 of Art. 8 provides that, from a final judgment of the district court there shall be a right of appeal to the Supreme Court, and appeals shall also lie from final judgments of justice’s of the peace in civil and criminal cases to the district court, on both questions of law and fact, and the decision of the district court on such appeal shall be final, except in cases involving the validity or constitutionality of a statute. By this section,' the decision of the district court on appeal of a case from a court of a justice of the peace is expressly made final, the validity or constitutionality of a statute not being involved. But, it is contended that the order appealed from was not made in a justice court but by the district court after appeal and judgment therein. We are of the opinion that the jurisdiction of this court does not depend upon such a contingency. Sec. 7, referred to, gives the district court original jurisdiction in all matters not excepted in the Constitution, and the jurisdiction is thereby defined. By Sec. 9, the appellate jurisdiction is declared.. By giving an appeal from all final judgments of the district court is meant “final judgments” entered in cases within the original jurisdiction of the district court, and not to [241] cases appealed from courts of justices of the peace, unless the constitutionality or validity of a statute is involved in such appeal. Upon the theory contended for by the appellants, while there is no appeal from a judgment rendered in the district court on appeal from a judgment rendered by a justice of the peace, yet, if an order is made therein after' judgment setting aside a fraudulent sale on execution issued upon the judgment, an appellate jurisdiction is created, not by operation of the constitution, but by the acts of the parties or by the court. It seems to us that such a- construction of the constitution would in many cases annul its provisions and give interested parties a right of appeal when their rights could be preserved or their remedy made complete without such action. Whether the order setting aside a sale involves the rights of the parties to the action, or third persons who purchased an interest in the judgment after it was rendered, will not change the rule. The district court had power to control its process and to set aside the execution sale. Rev. Stat. Sec. 98; Gray v. Denhalter, 53 Pac. Rep. 976. The purchaser at an execution sale being the owner of the judgment by assignment, subjects himself to the jurisdiction of the court in respect to the sale and purchase. Hall v. Clawson, 60 N. Y. 339, 341; Cazat v. Hubbell, 36 N. Y. 677; May v. May, 11 Paige, 201. When the appellants purchased the stock they purchased it subject to the power and authority of the court to set aside the sale in its discretion upon proper grounds. That the sale was set aside presents no ground for appeal. The execution may be again levied, and the appellants may bid again at the execution sale. There is no vested [242] right to an appeal. Eureka City v. Wilson, 15 Utah, 53, 48 Pac. 150; Gray v. Denhalter, 53 Pac. 976; No. Point Consol. Irr. Co. v. Canal Cos.’ 46 Pac. Rep. 824; Ogden City v. Crossman, 53 Pac. 985. The purchasers at the execution sale were assignees of the judgment and the real parties in-interest. They were sureties on the appeal bond and manipulated and controlled the sale of the stock. Without giving notice to the parties they sold the property shown to be worth ten thousand dollars and upwards for ten dollars, and themselves became the purchasers. We are of the opinion that no appeal lies from the order appealed from to the supreme court. Under the circumstances shown the appeal is dismissed, with costs. Zane, C. J. and Bartch, J., concur.