Kern's Administrator v. Foster

16 Ohio St. 274

Opinion

Read, J.

These proceedings are not properly before us.

writ of certiorari is not the mode of questioning the regularity of a sale and order of confirmation in chancery. An order of confirmation of sale in chancery, is such a final sentence or decree as authorizes an appeal to the Supreme Court, under section 52 of the chancery, act. Swan’s Stat. 713. To sustain appeals from such orders has been the constant practice. The case of Hay v. Schooley, 7 Ohio, 48, pt. 2, and Craig’s Adm’r v. Fox & Miller, decided at the present term, were both appeals from orders of confirmation of sales had under decrees in chancery. The only doubt which ever existed upon this point was, whether such appeal brought up the whole case and opened the original decree; but it was decided in Hay v. Schooley that it only reached the confirmation and proceedings had subsequent to the decree which settled the merits. A plain method existing, then, of bringing the question of confirmation and the regularity of the sale before tho Supreme Court by appeal, we are not disposed to recognize the additional remedy *of a writ of certiorari, which proceeding, if not wholly unknown to chancery, would, at furthest, only be resorted to in cases where there was no other remedy. But the question which it was sought to bring up by this writ has been decided at this term, in tho case of Craig’s Adm’r v. Fox & Miller, adversely to the applicant for this writ, and therefore nothing is lost to the party by its dismissal. Writ dismissed.