Currie v. Gaar, Scott & Co.

North Dakota Supreme Court

Currie v. Gaar, Scott & Co.

110 N.W. 83, 15 N.D. 621, 1906 N.D. LEXIS 96

DecidedJuly 30, 1906

StatusPublished

This text of 110 N.W. 83 (Currie v. Gaar, Scott & Co.) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Currie v. Gaar, Scott & Co., 110 N.W. 83, 15 N.D. 621, 1906 N.D. LEXIS 96 (N.D. 1906).

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Opinion

Per Curiam.

This is an action to determine the validity of a default real estate foreclosure judgment, and of the'sale of the premises which was made pursuant thereto. The property was bid in at the sale by the mortgagee, Gaar, Scott & Co. The plaintiffs claim to have a mortgage upon the premises, also an attachment lien, both of which are subsequent in point of time to the Gaar-Scott mortgage involved in the foreclosure action. Service in that action was made upon the mortgagor by publication. These plaintiffs claim that there were defects in the proceedings so that the court did not acquire jurisdiction to enter judgment, and further, that the mortgage itself was void because it was upon the homestead and was not signed by the mortgagor’s wife. Upon plaintiff’s application a temporary restraining order was issued in this action, directed to the sheriff, enjoining him from issuing a deed pendng the determination of the action. Gaar, Scott & Co. made an application to vacate the above order, which was denied, and it has appealed from the order.

The order must be affirmed. An examination of the grounds urged by appellant for reversal is not necessary. The records of [622]*622this court show that the judgment in question was vacated by the trial court upon the application of the mortgagor and his wife, in the action in which it was rendered and the sale was set aside, and the order vacating the judgment and sale was affirmed by this court upon appeal. See opinion just handed down in Gaar, Scott & Co. v. Collin et al. (N. D.; submitted with this appeal) 110 N. W. 81. Gaar, Scott & Co., the present appellant, was the plaintiff and appellant in the other action and is bound by the adjudication. The judgment and sale having been set aside, it follows that no right to issue a deed remains, and this is the alleged right which the appellant seeks to vindicate by this appeal. Order affirmed.

(110 N. W. 83.) All concur.

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Per Curiam.

This is an action to determine the validity of a default real estate foreclosure judgment, and of the'sale of the premises which was made pursuant thereto. The property was bid in at the sale by the mortgagee, Gaar, Scott & Co. The plaintiffs claim to have a mortgage upon the premises, also an attachment lien, both of which are subsequent in point of time to the Gaar-Scott mortgage involved in the foreclosure action. Service in that action was made upon the mortgagor by publication. These plaintiffs claim that there were defects in the proceedings so that the court did not acquire jurisdiction to enter judgment, and further, that the mortgage itself was void because it was upon the homestead and was not signed by the mortgagor’s wife. Upon plaintiff’s application a temporary restraining order was issued in this action, directed to the sheriff, enjoining him from issuing a deed pendng the determination of the action. Gaar, Scott & Co. made an application to vacate the above order, which was denied, and it has appealed from the order.

The order must be affirmed. An examination of the grounds urged by appellant for reversal is not necessary. The records of [622]*622this court show that the judgment in question was vacated by the trial court upon the application of the mortgagor and his wife, in the action in which it was rendered and the sale was set aside, and the order vacating the judgment and sale was affirmed by this court upon appeal. See opinion just handed down in Gaar, Scott & Co. v. Collin et al. (N. D.; submitted with this appeal) 110 N. W. 81. Gaar, Scott & Co., the present appellant, was the plaintiff and appellant in the other action and is bound by the adjudication. The judgment and sale having been set aside, it follows that no right to issue a deed remains, and this is the alleged right which the appellant seeks to vindicate by this appeal. Order affirmed.

(110 N. W. 83.) All concur.

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Bluebook (online)

110 N.W. 83, 15 N.D. 621, 1906 N.D. LEXIS 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/currie-v-gaar-scott-co-nd-1906.

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