Enochs-Flowers, Ltd. v. Bank of Forest

ON SUGGESTIONS OF ERROR. The appellants and the appellee have both filed suggestions of error herein. The appellants reaffirm their original contention that this is a suit to foreclose a lien on property, specifically for the sale of pledged property, and that all the pledgors are indispensable parties thereto, and make the additional point that the court was without authority to render a decree for the payment of the debt sued on, except as an incident to a decree for the sale of the property pledged as security therefor, from which it follows that the decree of the court below should have been reversed in toto, and not affirmed in so far as it awards a judgment for the amount of the debt. The answer to the first of these contentions, as pointed out in our original opinion, is found in section 2988, Code 1930.

Having taken jurisdiction of the case, the court below was authorized to administer full relief, including the award of a judgment for the debt sued on, Edgewater Park Co. v. Standard Bond, etc., Co., 162 Miss. 684, 138 So. 811, although the prayer for the sale of the property pledged as security therefor should be denied, Atkinson v. Felder, 78 Miss. 83, 29 So. 767. Should the court below, on the return of the case thereto, award a sale of the property pledged, how the court should then deal with the judgment on the debt theretofore rendered is set forth in Edgewater Park Co. v. Standard Bond, etc., Co., supra. We committed no error, therefore, in affirming the judgment for the debt sued on.

The appellee also suggests now that instead of remanding the case, we should have rendered a final judgment here amending the decree of the court below "either by withdrawing the permission to the pledgee to purchase, or by appointing an officer of the lower court to conduct the sale and permit the pledgee to purchase."

The appointment of a commissioner to make the sale is for the trial court, and should we eliminate from the decree the permission to the appellee to purchase at its own sale, the decree would still be incomplete and erroneous, as pointed out by counsel for the appellants.

The sale to be made is not under the power given the appellee in the pledge agreement, but is an ordinary judicial sale. Such sales are incomplete until, and must be, confirmed by the court, except when the rule of confirmation in pais applies. Griffith's Chan Prac., section 656. This decree, erroneously, relieves the person appointed to make the sale from reporting it to the court for confirmation.

Both suggestions of error are overruled.