
    The Johnson Loan and Trust Company v. H. L. Ball et al.
    
    No. 314.
    
      Practice — Sheriff’s Sale — Revivor Unnecessary, When. Where an order of sale has been issued upon a judgment and the real estate sold thereunder by the sheriff prior to the death of one of the judgment debtors, it is unnecessary to revive the action or the judgment before the confirmation of the sheriff’s sale or the execution of the sheriff’s deed.
    Error from Kingman district court; W. O. Bashore, judge.
    Opinion filed July 13, 1898.
    Reversed;
    
      J. Mach Love, for plaintiff in error.
    
      G. W. Fairchild, for defendants in error.
   The opinion of the court was delivered by

Dennison, P. J. :

In October, 1887, the plaintiff in error filed a petition in foreclosure in the district court of Kingman county, against H. L. and Eva Ball and apother, and on May 28, 1888, judgment was duly rendered in favor of the plaintiff. On January 14, 1889, .an order of áale was issued and duly executed and the real estate sold on March 4, 1889, to the plaintiff. On August 8, 1890, a motion was duly made and filed to confirm said sale. On August 21, 1890, BE. L. Ball died, leaving as his heirs Eva Ball,, his wife, and William Ball, Milo Ball, and Joseph Ball, his three sons, who were all of age at the time of the death of their father. On September 6, 1890, the the sale was confirmed, and thereafter the sheriff executed and delivered a deed of the real estate to the plaintiff.

On March 8, 1892, Milo Ball filed a motion in the district court of Kingman county, asking that the judgment, order of sale, confirmation of sale and all proceedings liad in the action be set aside. The court sustained the motion and the plaintiff brings the case here for review.

The question to be decided is, whether it is necessary to revive an action or a judgment therein upon the death of one of the parties, after the issuance of an order of sale and a sale thereunder. This question must be answered in the negative. It is not necessary to revive the action, because it has been merged into a judgment. It is not necessary to revive the judgment, because it has served its purpose in sustaining the issuance of an order of sale which has been fully executed by the sale thereunder. The only thing necessary to be done to close the transaction is the examination of the proceedings by the court, and if they are found regular it is his duty to confirm the sale and direct the sheriff to execute to the purchaser a deed for the real estate sold. The confirmation of a sheriff’s sale and the order to execute a sheriff’s deed are ex parte proceedings, and may be made upon the motion of any person interested, or on the court’s own motion without notice to any person.

The judgment of the 'district court is reversed, and the cause remanded with instructions to overrule the motion of Milo Ball.  