Opinion
No. 25362.
February 4, 1936.
(Syllabus.)
1. Execution — Judgment Debtor not Entitled to Have Confirmation of Execution Sale of Realty Vacated Merely Upon Offer to Pay Judgment and Costs.
When real estate has been sold at sheriff's sale on execution and that sale has been confirmed by the court, the former owner of the land or judgment debtor is not as a matter of right entitled to have the confirmation of the sale vacated merely upon an offer to pay the judgment and costs.
2. Same — Judgment Debtor and Purchaser at Execution Sale Entitled to Full Hearing on Motion to Vacate Confirmation.
When, after confirmation of sheriff's sale of real estate on execution, the former owner and judgment debtor files a motion to vacate confirmation, which on account of the facts peculiar to that case, and on account of the matters alleged in attack upon the confirmation, is entitled to be presented even after confirmation, then both the purchaser at the sheriff's sale and the former owner of the land are entitled to a full hearing upon such motion.
3. Mandamus — Original Action to Require Lower Court to Make Certain Orders Upon Mandate on Former Appeal — Scope of Remedy.
In an action in mandamus to require the district court to make certain orders upon mandate on former appeal, this court will not require action by the trial court which is not in compliance with duty under former mandate.
Original action by May Wheeler Miller for writ of mandamus to require J.W. Bird, Judge of the District Court of the 20th Judicial District, to make certain orders upon former mandate of Supreme Court; Emma Mentzer intervening, Petition denied.
J.D. Lydick and R.F. Barry, for plaintiff.
Wilson Wilson, for defendant and intervener.
This case involves the same controversy as is presented in Emma Mentzer v. May Wheeler Miller, 176 Okla. 1, 54 P.2d 1038, this day decided.
Here the plaintiff seeks a writ of mandamus requiring the district judge to vacate and set aside the sheriff's sale of real estate and confirmation thereof, and further requiring the district court to vacate the original judgment on account of the fact that the plaintiff here, May Wheeler Miller, did or December 22, 1933, pay in to the court the sum of $650 upon the tender set out in her motion to vacate confirmation of sheriff's sale for irregularities in the sale proceedings and for inadequacy in the sale price.
The plaintiff here is not entitled to the relief sought. The reasons for this conclusion more fully appear in the companion case of Mentzer v. May Wheeler Miller, above referred to, this day decided, and need no further statement here.
In this action Emma Mentzer, as intervener, seeks certain affirmative relief. A portion of it, that is, the right to a hearing on the motion to vacate confirmation of sale, is accorded her by our decision in the Mentzer v. Miller Case, this day decided, and it does not appear that she is entitled to any further relief under her general prayer for proper relief in her petition in intervention. She suggests that the trial judge should be disqualified from proceeding further in the case, but no facts are presented upon which we could determine that portion of her petition in intervention.
For the reasons stated, and upon our determination of cause No. 25671, Mentzer v. Miller, this day decided, the petition of the plaintiff here is denied.
McNEILL, C. J., OSBORN, V. C. J., and RILEY, BAYLESS, BUSBY, PHELPS, CORN, and GIBSON, JJ., concur.