The defendant in error, claiming that this action is now here, makes a motion for a re-argument of the same.
The proceedings heretofore in relation to the motion, are these: Before the January term of this court in 1871, the defendant had secured a judgment in the District Court against the plaintiffs in error for several hundred dollars, had prayed out his writ of execution thereon, and had delivered it to the sheriff of Yankton county to collect, who, in pursuance thereof, had levied upon and sold the real property of the plaintiffs, or one of them. Pursuant to the Statute of 1862, page 125, Sec. 449, which authorized such proceedings, the defendant made a motion to the court to confirm the sale of the sheriff, and such proceedings were thereupon had, that the sale was by the court confirmed. The plaintiffs excepted to the decision of the court, and brought the case to this court at the January term in 1871, by petition in error, (which was then in accordance with the statutes of this Territory) for revision. At that term a hearing was had and the court reversed the judgment of the court below confirming the sale, and remanded the motion and ease to the District Court, which decision was transmitted thereto and entered, on motion of the plaintiffs, among the records thereof. And at the September term of the District Court in 1871, a motion was again made to confirm the sale by this defendant, and on a full hearing on the merits, the motion was overruled and the sale set aside.
The defendant excepted to the decision, appealed to this court and entered his action upon the calendar. And at the January term in 1872, he caused the court, upon his motion, *41to have entered upon the calendar “ mis-entered? hence the case was effectually dismissed therefrom.
The statute at that time, jn relation to the reversal of judgments, was this: “ When a judgment or final order shall be reversed, either in whole, or in part, in the Supreme Court, the court reversing the same shall proceed to render such judgment, as the court below should have rendered, or remand the case to the court below, for such judgment; and the court reversing such judgment or final order, shall not issue execution in causes that are removed before them on error, on which they pronounced judgment, as aforesaid, but shall send a special mandate to the court below, as the case may require, to award execution thereupon,” etc.; vide Statute of 1862, page 141, Sec. 530.
This was not a case wherein the court should send a specia mandate to the court below to award execution upon theirZ judgment, — such á proceeding would be proper when their judgment is final, and nothing more need be done, except to execute the judgment, or enforce it, or award execution thereupon. The effect of the decision in this case was merely to open it for a new trial.
The general appearance entered by the defendant in the court below, and submitting to its jurisdiction by having a trial on the motion, on its merits, to confirm the sale, without any objection, is a waiver of any error which might have been committed in the transmission of the decision to the District Court. We are, however, of opinion that there was no error committed in the transmission of the decision, that therein there was a substantial compliance with the statute, and tha,t the defendant, without having any of his rights abridged, has had his full “ day in court;” and, therefore, the motion is
Ovebruled.