Challiss v. Wise

Supreme Court of Kansas

Challiss v. Wise

2 Kan. 193

CourtSupreme Court of Kansas

DecidedOctober 15, 1863

StatusPublished

Cited by8 cases

This text of 2 Kan. 193 (Challiss v. Wise) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Challiss v. Wise, 2 Kan. 193 (kan 1863).

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Opinion

By the Court,

Kingman J.

The plaintiff in error foreclosed a mortgage against Headley & Carr, sued out an order of sale and became the pui-chaaer at the Sheriff’s sale of the N£ of lot 9 in the [197]*197City of Atchison, and moved the Court for a confirmation of the sale.

The defendants objected to the confirmation. They had a judgment and execution levied on the lot older than Chaliss’ mortgage, and had become the purchaser of the same under their execution.

The Court confirmed the sale of some other property sold under Challiss’ mortgage, but refused to confirm the sale to the NJ- of lot 9.

It was admitted on the trial of the motion, and was so ound by the Court that all the proceedings had under the order of sale were regular and in conformity with the law.

This admission by the parties and finding by the Court, .settles this case. It was the duty of the Court to confirm the sale. The motion to confirm is founded upon Section M9 of the Code, and the whole duty of the Court on such motion is to see that the proceedings of the officer have been in conformity with the law. On such a motion the Court cannot go behind the execution nor receive any evidence except as to the regularity of the proceedings. This is apparent from the Section itself, and has been decided by this Court in the case of Koehler v. Ball, where authorities are cited.

The Court undertook to do more, to settle the title to the property on a motion without pleadings. This was error. Eor this reason the order of the Court in the premises is reversed, and the cause remanded to the District Court of Atchison County for confirmation, leaving the parties to try their rights by regular proceedings.

Eor the reasons given for not affirming the action of the Court below, we abstain from indicating any opinion on the other points argued by the counsel in this case, and on which they invoked the judgment of this Court.

AH the justices concurring.

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By the Court,

Kingman J.

The plaintiff in error foreclosed a mortgage against Headley & Carr, sued out an order of sale and became the pui-chaaer at the Sheriff’s sale of the N£ of lot 9 in the [197]*197City of Atchison, and moved the Court for a confirmation of the sale.

The defendants objected to the confirmation. They had a judgment and execution levied on the lot older than Chaliss’ mortgage, and had become the purchaser of the same under their execution.

The Court confirmed the sale of some other property sold under Challiss’ mortgage, but refused to confirm the sale to the NJ- of lot 9.

It was admitted on the trial of the motion, and was so ound by the Court that all the proceedings had under the order of sale were regular and in conformity with the law.

This admission by the parties and finding by the Court, .settles this case. It was the duty of the Court to confirm the sale. The motion to confirm is founded upon Section M9 of the Code, and the whole duty of the Court on such motion is to see that the proceedings of the officer have been in conformity with the law. On such a motion the Court cannot go behind the execution nor receive any evidence except as to the regularity of the proceedings. This is apparent from the Section itself, and has been decided by this Court in the case of Koehler v. Ball, where authorities are cited.

The Court undertook to do more, to settle the title to the property on a motion without pleadings. This was error. Eor this reason the order of the Court in the premises is reversed, and the cause remanded to the District Court of Atchison County for confirmation, leaving the parties to try their rights by regular proceedings.

Eor the reasons given for not affirming the action of the Court below, we abstain from indicating any opinion on the other points argued by the counsel in this case, and on which they invoked the judgment of this Court.

AH the justices concurring.

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Bluebook (online)

2 Kan. 193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/challiss-v-wise-kan-1863.

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