Homestead Land Co. v. Joseph Schlitz Brewing Co.

69 N.W. 346, 94 Wis. 600, 1896 Wisc. LEXIS 202

• Court: Wisconsin Supreme Court
• Decided: December 15, 1896
• Status: Published

Opinion

Maeshall, J.

The granting or refusing of^an application to set aside a judicial sale and order a resale, as a matter of favor, rests in the sound discretion of the court. It may confirm the sale, or refuse to confirm, set aside the sale and order a resale, in the exercise of discretion, to the end that justice may be done to all parties interested. Rorer, Jud. Sales, 231; Jones, Mortgages, § 1640. The determination of the trial court on such an application cannot be disturbed except for clear abuse of judicial discretion. Such is the well-established rule governing the subject of this appeal. Adams v. Haskell, 10 Wis. 123; Jones, Mortgages, § 1640; Germer v. Ensign, 155 Pa. St. 464. No fraud is claimed to have been perpetrated upon appellant, o'r unfair dealing .shown. To be sure, there is the affidavit that respondent’s attorneys promised to inform one of appellant’s attorneys of the date of the sale, and that they failed to do so, but that is fully explained and excused. There is no question but that the sale was fairly conducted; that appellant informed respondent’s attorne3rs before the sale that it did not desire to purchase the property; that respondent fairly purchased the property for the amount due on its mortgage, with costs and interest up to the date of the sale; that it contracted to sell the- property at cost to the third mortgagee, ■and received upon such contract $1,000. Certainly, under such circumstances, we cannot say that the denial of appellant’s motion was an abuse of discretion; hence, the order .appealed from cannot be disturbed.

Following the established practice on appeals from discretionary orders, where this court is unable to conclude that the order appealed from was the result of an abuse of judicial discretion, this appeal must be dismissed.

By the Court. — The appeal is dismissed.