#### Toohey *v.*Simmons, Appellant; The Ohio State Life Ins. Co., Appellee, et al.

(Decided February 28, 1941.)

*419
      *Mr. George S. Eawhe,*for appellant.

*Messrs. Matthews $ Matthews,*for appellee.

Hamilton, J.

This appeal is from an order of the Court of Common Pleas, overruling the motion of the appellant to set aside the confirmation and sale of certain real estate.

The error assigned is that the sheriff in reappraising the property did so in a manner not in conformity with the order of court ordering the reappraisement of the property. It is urged that the sheriff in making the reappraisement selected three new appraisers to make the new appraisement, in violation of the order of court, which was “that a reappraisement he made hy the same persons.”

The sheriff in making the reappraisement selected three new appraisers, who made the appraisement and the sheriff made the return of the appraisement under the value placed by the three new appraisers.

The question is: "Was that such an irregularity as would invalidate the sale?

The appellee moves to dismiss the appeal for the reason that the order appealed from is not a final order, from which an appeal can be taken.

If the sale is invalid, it does involve a substantial right, and would be a finality insofar as the sale of the property is concerned.

The motion to dismiss the appeal will be overruled.

The question as to the regularity of the appraisement involves Sections 11672, 11711 and 11688, General Code.

Section 11672, General Code, provides, among other things, that in making-the appraisement, “the officer who makes the levy shall call an inquest of three disinterested freeholders, residents of the county where the lands taken in execution are situated * * *.”

This section specifically authorizes -the officer mak*420ing *the*levy *to*select *the*appraisers, and gives no right to the conrt to make any such selection.

Section 11711, General Code, provides in case of new appraisement, that “the court from which the order of sale issued, on motion of the plaintiff or defendant, shall order a new appraisement, and also may order that the land he sold as follows.” Then the section provides the method of payment under the sale on the reappraisement. It nowhere provides that the court is to select the appraisers for the reappraisement.

Section 11688, General Code, provides for the confirmation and deed, and provides, among other things: “* * # on careful examination of the proceedings of the officer, if the court finds that the sale was made, in all respects, in conformity to the provisions of this title, it shall direct the clerk to make an entry on the journal that the court is satisfied of the legality of such sale, and that the officer make to the purchaser a deed for the lands and tenements.”

Under the provisions of these statutes, which place the *only*power and authority to select the appraisers, the provision made for this designation in Section 11672, General Code, must be read in connection with Section 11671, General Code, upon reappraisement. The court order, insofar as it provided “that a reappraisement be made by the same persons as originally appraised the same,” was without authority of law. However, since the reappraisement by the sheriff was in conformity to law, no irregularity can be based upon that proposition. Moreover, as provided by Section 11688, General Code, the court found that the sale was made in all respects in conformity with the provisions of this title, and approved and confirmed the same. If it were necessary, this would be a waiver of the court’s suggestion to the selection of appraisers on reappraisement, which, in its discretion it had the power to do.

We find no irregularity in the proceeding, and the *421order of confirmation and sale of the real estate, to which this appeal is directed, was in conformity with law.

The court did not err in overruling the motion to set aside the confirmation and sale. The judgment in each case is affirmed.

*Judgment affirmed.*

Ross, J., concurs.

Matthews, P. J., not participating.