
    James River Lodge, No. 32 I. O. O. F., of Huron, v. Campbell, Judge, et al.
    
    1. Suction /5411, Comp. Laws, which provides that a circuit judge may, on a proper showing of defense or counterclaim to a mortgage which is being foreclosed by advertisement, enjoin such proceedings to foreclose • and require that all further proceeding's be had in court, is remedial in Us nature.
    2. Having made such an order, the judge's power in the premises is not so exha,usted that he cannot vacate the same, the status of the parties being unchanged, when satisfied that the cause for making it no longer exists.
    (Syllabus by the court.
    Opinion filed Nov. 2, 1894.)
    Petition lor a writ of certiorari to A. W. Campbell, as‘judge of tho fifth judicial circuit of South Dakota, and one Dicker-man, to review the action of such judge in vacating an order directing that foreclosure proceedings of a certain mortgage given by petitioner to Dickerman, which Dickerman had commenced by advertisement, should be transferred to the circuit court.
    Writ denied.
    The facts are stated in the opinion.
    
      John. L. Pule and S. MI. West, for plaintiff.
    
      Burtt <ú Sterling, for defendants.
    The mortgage and bond should be construed together. 1 Jones Mort. 71; Carter v. Carter, 41 N. W. 168. . The judge had power in the exercise of sound discretion to vacate the restraining order and allow the sale to proceed. Halvorsen v. Mortgage, Co. 54 N. W. 1026.
   Kellam, J.

In March, 1891, defendant Dickerman commenced the foreclosure of a real-estate mortgage containing a power of sale, against t-ho plaintiff, by advertisement. While these proceedings were pending the. mortgagor, the plaintiff in this proceeding, ¡mesented 13 the Honorable A. W. Campbell, circuit judge,"an affidavit under the provisions of section 5411, Comp. Laws, showing, it may be assumed, that the plaintiff had a defense against a part of the amount claimed by the mortgagee to be due, such affidavit showing the certain amount alleged to be claimed by the mortgagee in excess of what the mortgagor admitted to be due. Upon this affidavit the judge made an order, as provided by said section referred to, directing that all further proceedings for the foreclosure of such mortgage be had in the circuit court of the proper county. This affidavit and order being served upon the mortgagee, he applied to said j udge to vacate the order, upon notice to plaintiff, and upon an affidavit stating that he would and did thereby concede all that the mox-tgagor claimed, and that he would claim under such foreclosure proceedings no more than the amount which was conceded by plaintiff to be due, and would release and discharge all that the mortgagor contended was in excess of the amount justly due. Upon such statement and understanding by the mortgagee, the judge made an order vacating his first order. The mortgagor asks this writ of certiorari on the ground that the judge had no power or jurisdiction to make the last order. He says the only authority the judge had to make any kind of an order in the premises was that conferred by section 5411, and that was power to make one single and definite order, whose length and breadth were clearly defined; he could do no more and no less than to make that one order, when satisfied of the existance of the conditions which, by the terms of such section, authorized it; and that such power, when once exercised, was exhausted.

It cannot be said that there is no merit or force in this contention, but we are rather inclined to take a diffex-ent view of the matter. We regard the statute as remedial. Its obvious purpose is to afford a mortgagor an opportunity to be heax’d upon, and have judicially settled, any dispute between himself and the mortgagee or holder of the mortgage as to the whole or any part of the mortgage debt. By the power of sale in the mortgage, the mortgagor conferred upon the holder of the mortgage the right to foreclose by advertisement for the amount •which should be due upon it. To properly ascertain and fix this amount in case of dispute is, in this respect, the only object in carrying the proceedings into court. To justify the judge in making the order on that account, he must be satisfied that the mortgagor, in good faith, disputes the amount claimed. The right to have the forclosure proceedings transferred to the court rests upon the fact of an apparent defense in whole or in part to the claim made by the holder of the mortgage. If the judge should misread or misinterpret the effect of the mortgag- or’s affidavit, and make the order, his power under the statute ought not to be held fundios officio, and the order irrevocable. McCan v. Investment Co. (N. D.) 54 N. W. 1030. So, too if he properly make the order, and subsquently, and before the status of the parties is in any manner changed, he is judicially satisfied that the dispute as to the amount no longer exists, we think he has power to, and may properly, vacate or set aside his former order. The only object of the legislature in authorizing the judge to make the order was to get the parties in position where their dispute might be judicially settled, but they have themselves settled it, and removed the only cause for going into court. If the judge had known in the first instance that there was no dispute between the parties; that the mortgagee would claim no more than the mortgagor conceded, — he would have declined to make the order. Being judicially satisfied of this after he has made the order, and that the ground for it no longer exists, we think he may unmake it. We do not mean that the judge may then determine that there ought to be no dispute, upon his judgment that upon the question of fact one party is right and the other is wrong, for it is not the purpose of the statute to have such question of fact litigated before the judge in this proceeding; but where, upon the showing of both parties, there is no longer any disagreement between them, it wmuld seem to be sticking too closely to the exact letter of the statute to hold that upon such a showing he is powerless to do what he would have done in the first instance if such facts had then been known to him. Possibly, the letter of the statute is not so broad as its spirit, but in construing a statute its purpose, if evident, must always be kept in view. In our judgment the intent of this law was to commit to the judge the power of determining, upon the basis therein named, whether the foreclosure proceedings by advertisement should be arrested, and the same transferred to' the court, and that his control over such question is not lost when he grants or refuses an application for an order. It seems to us, considering the object of the statute, that its design was to refer and commit a subject to the judge, rather than to authorize him to make a single defínate order.

These views, if correct, lead to the conclusion that when the judge became judicially satisfied that there was no longer any dispute between the parties, nothing to be litigated, and no reason for the proceeding going into court, he had power to, and might properly, vacate the order which he made on the ground that there was a dispute. While the question is not entirely clear of doubt, we adopt this conclusion as best calculated to conserve the rights of all, and at the same time accomplish the very evident object of the statute. The writ is denied.  