
    Joseph P. Root v. James McGrew.
    
      Error from Wyandotte County.
    
    The decision inOusic v. Douglas, (3 Kans. R., p. 123,)andDeiiz v, Rawlston. (MSS.,) relating to the confirmation of sales made by sheriff under execution. of a homestead, confirmed.
    An order overruling a motion to set aside and confirming the salo under execution of premises occupied as a homestead, reversed.
    The execution under which the sheriff levied upon, appraised and advertised the lands for sale, showed upon its face that the return day thereof was the 19th day of June, and the sale was advertised for the 20th of June, and the execution was on the 19th of June returned, endorsed that the lands were not sold for want, of time, and an alias issued upon the 20th, and on that day the land sold.
    On the plaintiff below filing his motion to confirm the sale, defendant below filed his cross motion to set aside the sale; affidavits were read on that motion. The sale was confirmed by the court below as to all the lots levied on. As to one lot the court received testimony of defendant below, tending to show that that lot was the homestead of defendant, and of the plaintiff below tending to show that defendant was not the “owner” of the premises, but that they had been transferred to defendant’s wife through a third person. The order confirming the sale was excepted to by defendant below, who brought the case to thiB court.
    
      Jesse Cooper, for plaintiff in error, A. B. Bartlett, for defendant in error.
    
      Bartlett submitted:
    1st. The order confirming the sale was discretionary, and not appealable from. Seos. 380, 449, 546, Code / Hazelton v. Wakeman, 3 How. Pr. R., 357; Wakeman v. Price, 3 Comst., 334 ; 1 Id., 43, 125, 533, 535; 2 Id., 86, 186,269,563; 3 Comst., 334 ; 16 Wend., 369; IS Id., 350; 4 Id., 173; 1 Kern., 276, 279; 1 Kans., 221.
    2d. The proceedings and return of the officer being on their face regular, the court was bound to confirm the sale. Civil Code, sec. 449 ; 36 Bari., 571; 26 Id., 374 ; Challis v. Wise dé Crookham, 2 Kans. R., 193; Koehler v. Ball, Id., 360.
    3d. The land not belonging- to plaintiff in error, the ruling below did not prejudice his substantial rights, and the exception is therefore immaterial. Civil Code, sec. 305.
    
   By the Court,

Crozier, C. J.

This was a proceeding to reverse an order of the District Court of Wyandotte county, confirming a sale of certain property claimed by the plaintiff in error, as a homestead.

The questions presented were adjudicated by this court at the January term 1865, in the cases of Cusic v. Douglas et al., and Benz v. Rawlston, administrator of McCracken et al.

The order confirming the sale as to the property claimed as a homestead, will be reversed, and the sale thereof set aside.

All the justices concurring.  