Summary
holding that "[t]he order * * * ordering a foreclosure sale and finding the amounts due the various claimants is the final order from which [the defendant] should have appealed."
Summary of this case from Alegis Group L.P. v. AllenOpinion
No. 37780
Decided December 4, 1963.
Foreclosure — Real estate mortgage — Final appealable order — Claimant failing to appeal therefrom — Cannot thereafter attack correctness of final order — Pleading and proof necessary to establish claim.
APPEAL from the Court of Appeals for Lorain County.
The Oberlin Savings Bank Company brought an action to foreclose a mortgage on real estate against several defendants, including Carmen Fairchild, an appellee herein, who claims to have a life use in the subject property. She did not file an answer or cross-petition or offer any evidence to support her claim to a life estate.
On April 14, 1961, an order was entered ordering a foreclosure sale and finding the amounts due various claimants. The order decreed no payment or relief to Carmen Fairchild.
The property was sold on October 28, 1961, and the sale produced more than sufficient money to extinguish the mortgage debt and taxes.
On November 1, 1961, Carmen Fairchild entered into the proceedings by the filing of a motion, not supported by any evidence, stating that she owned a life use in the subject property and requesting that the court set off to her out of the surplus of the proceeds her life interest in money.
On December 19, 1961, the trial court entered an order confirming the sale and ordering distribution, without decreeing relief to the movant.
From the order of December 19, confirming the sale and ordering distribution, Carmen Fairchild appealed to the Court of Appeals.
The Court of Appeals reversed the judgment of the trial court for error in failing to fix the claim which Carmen Fairchild had against the fund and remanded the cause for recomputation of the order of distribution so as to recognize her claim.
The allowance of a motion to certify the record brings the cause to this court for review.
Mr. Philip M. Thomas, for appellee The Oberlin Savings Bank Company.
Mr. G.L. Severs, for appellee Carmen Fairchild.
Mr. Dan K. Cook, for appellant.
The order of April 14, 1961, ordering a foreclosure sale and finding the amounts due the various claimants is the final order from which Carmen Fairchild should have appealed. Queen City Savings Loan Co. v. Foley, 170 Ohio St. 383. The Court of Appeals was in error in reversing the judgment of the trial court, where no appeal was taken from the final order of that court.
The Court of Appeals was in error also in recognizing the claim of Carmen Fairchild who filed no pleading asserting her claim and presented no evidence in support of it.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.