Opinion
Decided October 13, 1926.
Court of Appeals — Appeal does not lie from overruling motion to set aside decree — Foreclosure and marshaling liens — Court may determine one lienholder's claim before disposing of other liens, when.
1. In proceedings to foreclose mortgage and marshal liens, order overruling motion to set aside decree of foreclosure and judgment is not an order from which an appeal may be taken.
2. In proceedings to foreclose mortgage and marshal liens, trial court may, in exercise of sound discretion, render judgment and decree on claim of one lienholder whose mortgage is uncontested before issues raised on other liens are disposed of.
APPEAL: Court of Appeals for Ottawa county.
ON MOTION to dismiss.
Messrs. True, Crawford True, for plaintiff.
Messrs. Bayly, Lawrence Beach, for defendants.
The action was commenced in the court of common pleas for the purpose of foreclosing a mortgage held by the bank against the defendant Clarence Sethman and his wife, and for the marshaling of liens on the premises. Michael O'Neal, one of the defendants, filed an answer and cross-petition setting up mortgages held by him on the same premises. Certain other defendants filed cross-petitions setting up liens claimed to be held by them. Separate answers were filed by the Sethmans, taking issue with the claim set up by the plaintiff, but the notes and mortgages of O'Neal were not controverted by any pleading.
On this state of the record a judgment was rendered by default on June 12, 1926, in favor of the cross-petitioner, Michael O'Neal, and an order of sale was issued thereon. This judgment was not assailed in any manner until July 2, 1926, when a motion was filed by Sethman and wife to vacate the judgment and decree of foreclosure. No further action was taken until July 26, 1926, on which date the motion to vacate the judgment and decree was heard and submitted, and by order of the court overruled, and a bond for appeal fixed at $500. On July 30, 1926, an appeal bond was filed by Sethman.
A motion to dismiss the appeal was filed, for the reason, among others, that the appeal bond was not filed within the time fixed by law.
It is apparent from the face of the record that the appeal bond was not filed within 30 days after the decree of foreclosure rendered on June 12, 1926. The order of the court made on July 26, overruling the motion to set aside the decree of foreclosure and judgment, is not an order from which an appeal may be taken. If the right of appeal may be prolonged by filing a motion to set aside a final judgment at any time during the term when it was rendered, or thereafter, then the limitation of 30 days for an appeal as fixed by statute would become meaningless. We are in accord with the view expressed by Marvin, J., in South Cleveland Banking Co. v. Nachtrieb, 24 C.C., (N.S.), 504, in which he makes this statement:
"If an appeal can be taken from such an order, all one has to do who desires to appeal his case is to leave the final order, pay no attention to it until a convenient season, and then file a motion to have it set aside."
Objection is made to the validity of the original judgment, in that it was rendered before the case was disposed of on the issues made on claims of other lienholders. To render a judgment and decree on a claim of one lienholder, whose mortgage is uncontested, before the issues raised on other liens are disposed of, rests in the sound judicial discretion of the trial court.
Motion to dismiss appeal is sustained.
WILLIAMS and YOUNG, JJ., concur.