Page:North Dakota Law Review Vol. 1 No. 1 (1924).pdf/3

Rh R. G. Winslow, vs. George Klundt, et alal. [sic],

1. When a judgment roll, in an action to foreclose a mortgage on real property, is filed in the office of the clerk of the district court, and the judgment is docketed therein, the judgment becomes a lien on the real property of the judgment debtor in that county, or in any county where a transcript of the docket is filed, and such real property may be sold under execution by the sheriff without a levy by filing a notice in the office of the register of deeds. Section 7547, C. L. 1913, insofar as the filing of such a notice is required, does not govern.

2. Objection to an execution sale, pursuant to a judgment in a foreclosure action, made on motion after the sale had been reported to and confirmed by the court and a sheriff's deed issued to the assignee of the sheriff's certificate, comes too late, when the sole ground is noncompliance with a statute which requires the notice of sale to be published "once a week for at least thirty days prior to making such sale," in this, that, altho the notice was published five times for five consecutive weeks, the first publication being more than thirty days prior to the date of sale, there was published one issue of the weekly paper between the date of the last publication and the day of the sale in which such notice was not published. If this be a noncompliance, it does not render the sale void, but merely voidable.

3. Whether, in an action in equity, where all the issues may be fully investigated, a sale may, under any circumstances, after confirmation, be set aside on the ground of irregularity in publishing the notice of sale, is not decided.

Appeal from an order denying motion to vacate order confirming sale, made by Hon. J. A. Coffey, of the Stutsman County District Court.

AFFIRMED. Opinion of the Court by Johnson, J. Nuessle, J., being disqualified, did not participate, Hon. Fred Jansonius of the Fourth Judicial District, sitting in his stead.

John A. Jorgenson, Jamestown, N. Dak., Attorney for Appellants George and Margaretha Klundt.

Knauf & Knauf, Jamestown, N. D. Attorneys for Respondent.