The opinion of the majority might well be termed an opinion of "confession and avoidance," because the majority practically agree with all of appellants' contentions down to the language in the paragraph third from the end of the opinion, and the language reads: "We note from the record that a sale of all the assets attached was had, a report of sale thereof to appellee. . . . No exceptions were filed to the report of sale, and the sale to appellee was approved and confirmed. . . ." Because of the approval of this sale without exceptions, the majority hold that it would be a useless and expensive procedure to reverse and remand, as urged by appellants. In other words, it seems to us that the majority are holding that appellants are right, but the appellants lose, because of failure to object to the report of sale, *Page 613
The sale was conducted and approved long after the rendition of the judgment here appealed from. The record reflects that the circuit court judgment was rendered November 15, 1943; that the motion for new trial was overruled and appeal prayed and granted on November 29, 1943; that the sale was held on December 17, 1943, and reported to the court on that day, and approved by the court on December 20, 1943. Thus, the circuit court judgment involved on this appeal had been made and appeal prayed and granted 21 days before the sale was approved; and yet the majority use the approval of the report of sale as cutting off the error (almost conceded by the majority) to have been made in the judgment. We fail to see how something happening after the appeal had been prayed and granted could be held a waiver of the error of the court in rendering the judgment appealed from.
Because we believe appellants are correct, and because we believe that the failure to object to the sale did not waive the error of the judgment, we, therefore, dissent.