
    Silversteen v. Mount et al.
    (Decided October 18, 1935.)
    
      Messrs. Maple & Maple and Mr. Stanley A. Silversteen, for plaintiff in error.
    
      Mr. Arthur Bryant, for defendants in error.
   Hamilton, J.

On November 5, 1934, the Court of Common Pleas’ of Warren county entered a judgment and decree of foreclosure of the mortgage on the real estate described in the petition, in favor of the plaintiff, Stanley A. Silversteen, who is the plaintiff in error here.

The decree ordered the sheriff to advertise and sell the premises.

At that time there was in effect Section 11588, General Code, (115 Ohio Laws, 227), known as the moratorium statute, which provided that a judge might, on certain required conditions, postpone the sale. This statute expired under its terms February 1, 1935. No action was taken to invoke the statute while it was in effect. After the statute had expired, to wit, on February 1, 1935, the defendant, John H. Mount, made an application for postponement of the sale. By that time the new act had been passed by the state Legislature, extending the so-called moratorium statute to the 1st day of February, 1937, (115 Ohio Laws, pt. 2, 327). However, the new act was not declared to be an emergency act, and its effective date was therefore postponed to March 15, 1935.

The court considered the application, and considered the law as in effect, and proceeded to make an order postponing the sale, which order was entered March 5, 1935. The sheriff proceeded to obey this order and cancelled the advertisement of sale. Later, on March 13, 1935, the court made the following entry:

“It appearing to the court that the defendant herein has paid all the back interest on the loans on the property involved in this suit and that there are no delinquent taxes on said property, the sale of said property is postponed under section 11588 of the General Code of Ohio as reenacted by the Legislature of Ohio.

“Enter as of March 5th, 1935.”

It will be noticed the court undertook to nunc pro tunc this entry to March 5, 1935, in order to give legal appearance to the order of March 5, 1935, cancelling the advertisement of sale.

It is to the order of March 5, 1935, and the entry approved March 13, 1935, that the plaintiff in error prosecutes error.

Had the moratorium statute been in effect on March 5, 1935, the order would not have been insufficient. Neither.is the order of March 13th a proper order. The statute, the effective date of which was March 15,1935, provides:

“When a mortgage is foreclosed or a specific lien enforced, a sale of the property shall be ordered. However, any court before which a proceeding for the foreclosure of a mortgage or the enforcement of a specific lien or execution against real property is had, on or before the first day of February, 1937, may after a full hearing, and upon such terms and conditions as may be fixed by the court, order that the sale be postponed * * V»

In neither of the orders here complained of were the orders made after a full hearing. Neither do they designate any terms and conditions. The orders are, therefore, insufficient in law to postpone the sale. However the sheriff was justified in postponing the s'ale under the order of the court, although the order may have been erroneously entered.

Our conclusion is that the errors pointed out require the setting aside of the order of March 5, 1935, and the entry approved March 13, 1935. The orders will be set aside and the case remanded to the Court of Common Pleas of Warren county for further proceedings according to law.

We are not, however, holding that a new application may not be filed under the moratorium statute, as amended.

Judgment reversed and cause remanded.

Ross, P. J., and Matthews, J., concur.  