
    Alex. Currie and A. H. Riggs, Co-partners as Currie & Riggs, v. Gaar, Scott & Co.
    Opinion filed July 30, 1906.
    Rehearing- denied January 7, 1907.
    Appeal — Review —■ Affirmance.
    An order restraining the issuance of a sheriS’s deed upon a sale pursuant to a default foreclosure judgment, which is issued in an action by a subsequent lienholder to determine the validity of such j udgment and sale, will be' affirmed upon appeal without a reexamination of the merits, where it appears that the judgment and ■sale have already been set aside upon the application of the mortgagor and the appellant was a party to the proceedings.
    Appeal from District Court, Rolette county; Cowan, J.
    Action by Alex. Currie and A. H. Riggs against Gaar, Scott & Co, and others. Judgment for plaintiffs, and Gaar, Scott & Co. appeal.
    Affirmed.
    
      Turner & Wright, for appellants.
    
      Davis & Sennett, for respondents Currie & Riggs.
    
      Wm. Bateson, for respondents.
   Per Curiam.

This is an action to determine the validity of a default real estate foreclosure judgment, and of the'sale of the premises which was made pursuant thereto. The property was bid in at the sale by the mortgagee, Gaar, Scott & Co. The plaintiffs claim to have a mortgage upon the premises, also an attachment lien, both of which are subsequent in point of time to the Gaar-Scott mortgage involved in the foreclosure action. Service in that action was made upon the mortgagor by publication. These plaintiffs claim that there were defects in the proceedings so that the court did not acquire jurisdiction to enter judgment, and further, that the mortgage itself was void because it was upon the homestead and was not signed by the mortgagor’s wife. Upon plaintiff’s application a temporary restraining order was issued in this action, directed to the sheriff, enjoining him from issuing a deed pendng the determination of the action. Gaar, Scott & Co. made an application to vacate the above order, which was denied, and it has appealed from the order.

The order must be affirmed. An examination of the grounds urged by appellant for reversal is not necessary. The records of this court show that the judgment in question was vacated by the trial court upon the application of the mortgagor and his wife, in the action in which it was rendered and the sale was set aside, and the order vacating the judgment and sale was affirmed by this court upon appeal. See opinion just handed down in Gaar, Scott & Co. v. Collin et al. (N. D.; submitted with this appeal) 110 N. W. 81. Gaar, Scott & Co., the present appellant, was the plaintiff and appellant in the other action and is bound by the adjudication. The judgment and sale having been set aside, it follows that no right to issue a deed remains, and this is the alleged right which the appellant seeks to vindicate by this appeal. Order affirmed.

(110 N. W. 83.)

All concur.  