Commercial Nat. Bank v. Smith

Citations

• 1 S.D. 28
• 44 N.W. 1024
• 1890 S.D. LEXIS 4

Syllabus

<p>1. An order made by the circuit judge, under the provisions of Section 5411, Comp. Laws, refusing an order enjoining foreclosure proceedings by advertisement, is an order of the j udge, and not of the court, and is not appealable.</p> <p>2. The application by the mortgagor, provided for in said section, was designed to be so far ex parte as not to authoi-ize or allow resisting affidavits tending to disprove the statements of mortgagor’s affidavit, setting-up his defense or counter-claim, to be heard or considered by the judge upon the hearing of such application.</p> <p>3. Any bill of exceptions, properly settled, which brings before this court a record of the fact than such affidavits were received and entertained upon the hearing of the application, raising issues of fact, upon his decision of which the judge determined the mortgagor’s right to such an order of stay and transfer, is sufficient to present the question of error in a case properly before this court.</p> <p>(Syllabus by the court.</p>