
    Niles v. Parks et al.
    
      fridicial sales — Confirmation of — Motion to set aside such sale and entry of confirmation, addressed to the discretion of the court and the evidence introduced in support thereof, will not be considered by this court — Discretionary power not lost by continuance of motion to next term.
    
    (Decided April 26, 1892.)
    Error to the Circuit Court of Rucas county.
    The defendant in error, Rysander Parks, bid off certain land offered for sale by the sheriff under an order issued for that purpose in an action to foreclose a mortgage on the land. At the sale, and before Parks made his bid,’ it was announced, as he claims, by the sheriff, “that there were 301 acres in the tract of land that he was then offering for sale, and the sheriff further said that the land had been several times before offered for sale, and that if any person bidding on the land who' had not examined the land or the title to the same, found either the title or quantity and character of the land to be unsatisfactory, he would not be compelled to take the property. Whereupon Parks said, ‘ I have not seen the land and do not know its value, but judging from the number of acres I should think the land cheap, and I will bid on it on the conditions you offer it and on no other,’ and his bid was made and accepted expressly on the conditions above named, and said conditions were a part of his bid on said property.”
    The land, which was sold as a tract containing 301 acres, was struck off to Parks, and return made of the sale by the sheriff, which was confirmed bjr the court before Parks saw the land, or had ascertained the quantity contained in the tract. It was represented to the court at the time the sale was confirmed, that Parks had given consent to the confirmation, which, he says, was not true. Soon afterward he examined the land and caused it to be surveyed, whereby he discovered that the tract contained but 241 acres, and, on that account, was not as valuable as it would have been if it had contained the quantity represented,
    
      At the same term of the court, at which the sale was confirmed, Parks filed his motion to set aside the order of confirmation and the sale, which motion was continued to the next term, when the court heard the evidence and sustained the motion, setting aside both the order of confirmation and the sale.
    The defendants in the foreclosure suit, plantiffs in error here, excepted, and the evidence submitted on the hearing of the motion was embodied in a bill of exceptions, upon which error was prosecuted to the circuit court, and thence to this court.
    
      Clayton W. Everett, for plantiff in error.
    
      Parks & Barber, for defendant in error.
   By the; Court.

This court will not consider the evidence introduced on the hearing of the motion, for the purpose of determining whether it is sufficient to sustain the judgment of the court on the motion.

The court of common pleas had complete control over its own orders during the term at which they were entered, and might set aside the sale and entry of confirmation, at its discretion. Huntington v. Finch, 3 Ohio St. 445.

The discretionary power of the court in this respect was not lost by the continuance -of the motion to the next term, and when decided at that term, it was the same, in legal contemplation, as if the decision had been made at the term at which the motion was filed. Bank v. Doty, 9 Ohio St. 508.

The case of Ralston v. Wells, decided at this term, ante page 298, is distinguished from this case, in the essential feature, that there, the motion was filed at a term subsequent to that at which the judgment was rendered.

Judgment affirmed.  