Los Angeles herald., 1892-12-30
A SNAP SALE SET ASIDE
The Bidder Was Twenty Min
utes Late.
The Supreme Court Says 1t Was
Excusable Neglect.
Judge Smith Decides . Blow IL Not a
Gentle Tap-In and Around the Courts
Grand Jury Still Investigates the
Chinese Case--Nsw Suits

received by Deputy Clerk Ashmore, al
frming the order appealed from in the
case Of Mary E. Haynes, respondent, vs.
Peter Backman ct al, defendants, and
Los Angeles Terminal Land company
appellant. The opinion was as follows
This Is an appeal by purchaser at q
sale OF property under foreclosure of q
mortgage from AN order setting aside the
sale.
From the affidavits used on the motion
the court below may have believed the
following to be the facts in reference to
the sale:
The amount found due on the mort
gage, including costs, was about $1,000.
That the land was worth that sum.
That plaintiff had instructed her attor-
news to attend the sale, and in case no
one bid more or an equal sum to bid for
her the amount of the judgment and
costs. That one of her attorneys,
Cochran, was intending to carry out
this instruction, and informed the dep
uty sheriff who had the matter in charge
of that fact, and instructed the deputy,
in view Of the fact that the sale was
fixed for Monday, which was law day,
when he might be busy in court, that in
case he was not present, to bid for his
client the amount due on the judgment.
That the purchaser, or its agent, was
we'll aware Of plaintiffs intention to bid
the full amount of the judgment. That
the defendant, who joins in the motion,
inquired Of plaintiffs attorney as to his
intention with reference to the sale,
and on being informed that he would
bid the amount of the judgment and
that there would be no Judgment for de-
fciency, relying upon the promise, made
no effort to have the property bring
a larger sum, being satisfied il the prop
erty should pay the debt.
That the sale was advertised for
October 10, 1891, at IL m. That on that
morning Cochran was actually engaged
in the argument of demurrer, and was
delayed by this business few minutes
after 12 O'Clock, but still hurried to the
place of sale, expecting to be in time,
but although he arrived within 20 min
utes after IL, the property had been
struck off to appellant for $500 and the
amount paid to the sheriff.
On the same day an order to show
cause on the next day why the sale
should not be set aside was obtained,
and served on the purchaser. On the
hearing, which by consent was adjourned
for five daye, the order appealed from
was made. 1t also appeared that plaint-
if would be unable to collect any de-
ficiency from the defendant.
/. Some Of these facts were controverted,
but il devoives upon the appellant to
show error. Unless, therefore, we can
plainly zee that the conclusion reached
by the court from the afidavits was
erroneous, we cannot interfere with its
discretion.
It is true 1T has been held that mere
inadequacy of price will not justify q
court in setting aside a sale where all
the proceedings are regular and free
flom fraud or mistake. Still in Dumer-
ous cases upon this subject that fact
figures as an important factor. Here
the attorney had left with the deputy
sheriff his bid. Such course is not un-
usual, and if the deputy was unwilling
to accept the bid in that form, he ought
to have informed the attorney of such
fact, in which case, very likely, knowing
that he might be detained, he would
have had some person present to bid for
him.
Setting aside the sale 30 promptly
will harm no one except a purchaser
who insists upon an unfair advantage
obtained by this excusable neglect on
the part of plaintiffs attorney, while
the client will be irreparably injured if
the sale is allowed to stand. Greater
delinquency has been found excusable
by this court in many cases.
As said in Buel va. limerick, supra,
very great discretion is conceded to the
trial court in regard to these matters,
in the interests of justice. We cannot
say that such discretion has been abused
in this case. We therefore advise that
the order appealed from be affirmed, snd
it ie affirmed.
An opinion was also received affirm
ing the judgment of the superior court
in the case OF Mary E. Haynes, respond
ent, vs.. Peter Backman, ct. al. defend
ants, and Los Angeles Terminal Railway
company. The opinion states that
the appeal is from the judgment,
and without a bill of exceptions.
Two points were made. The
appellant purchased from the
mortgagor, subsequent to the mortgage,
a strip of land, part of the mortgaged
premises, for right of way. In it's
answer appellant asked to have the land
divided and sold in parcels, the division
to be as divided by the railroad, and
the strip occupied by appellant should
be sold only in case sufficient money
could not be realized for the residue to
pay the mortgage. This was not done.
There being no bill OF exceptions, the
court says that it does not know that
the appellant acquired title to the strip
of land by conveyance from the mort
gagor after the mortgage was given, or
that a sale in separate parcels can be
had to advantage or without danger
of depreciating the price which
might be realized to the extent
of preventing plaintiff from realizing
the amount OF her mortgage. These
were questions to be determined from
the evidence, and on the appeal upon
the Judgment roll alone the court can
not review the action of the superior
court.
The second point was that the appell-
ant was not named in the complaint as
q defendant, but the Los Angeles, Pasa-
dena and Glendale Railway company
was. The judgment was not against
the last named company, but was
against appellant. The complaint was
not amended so as to include the ap-
pellant, and it is contended that the
Judgment was irregular. The court says
as to this point that the appellant,
Electric Bitters.
This remedy is becoming so well known and
xloro IN nod N