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Savings Bank v. Fairchild

Supreme Court of Ohio
Dec 4, 1963
175 Ohio St. 311 (Ohio 1963)

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. Allen

Opinion

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.


Summaries of

Savings Bank v. Fairchild

Supreme Court of Ohio
Dec 4, 1963
175 Ohio St. 311 (Ohio 1963)

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. Allen

holding that a judgment entry ordering a foreclosure sale and finding the amounts due the various claimants is a final appealable order

Summary of this case from Sky Fin. Group v. Mogul

In Fairchild, the bank brought an action to foreclose on a mortgage and named as a defendant Carmen Fairchild, who claimed a life estate in the property.

Summary of this case from CitiMortgage, Inc. v. Roznowski

noting that a trial court judgment entry that orders a foreclosure sale and that finds amounts due to various claimants is a final, appealable order

Summary of this case from Centex Home Equity Co., v. Williams
Case details for

Savings Bank v. Fairchild

Case Details

Full title:THE OBERLIN SAVINGS BANK CO., APPELLEE v. FAIRCHILD ET AL., APPELLEES; THE…

Court:Supreme Court of Ohio

Date published: Dec 4, 1963

Citations

175 Ohio St. 311 (Ohio 1963)
194 N.E.2d 580

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