Vickers v. Tracey

Cochran, J., delivered the opinion of this Court. The appeal in this case was taken from an order passed on the 23d of December 1862, ratifying a sale made in execution of a decree, dated the 25th of September 1861. No exception was taken to the proceedings of the trustee under the decree directing the sale; and, so far as we are informed by the brief and argument submitted on behalf of the appellants, they have prosecuted their appeal wholly on the ground of alleged error in that decree. The right of the appellee to have the property, affected by these proceedings, subjected to sale for the purpose of satisfying her claim, was ascertained and adjudicated by the decree directing the sale, and for that reason, the decree was final and conclusive on the right here contested by the appellants.

The order appealed from, was contemplated by the decree as one of the things necessary to be done in executing it, and as the purpose of the order was simply to perfect the sale and establish the right of the purchaser, without affecting any right at issue between the parties to the record, it could scarcely be considered, as between them, such an order as would support ¹⁹⁹ an appeal. But without expressing any opinion on that point, this posture of the case presents another question of a preliminary nature, the consideration of which is necessary; and that is whether