HOPPENKTEDT et al. v. FULLER et al., 71 F. 99

CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court. The objection that it does not appear either from the pleadings or finding of facts that the citizenship of the plaintiffs is such as to give the circuit court, jurisdiction is not well founded.

The complaint avers that the plaintiffs are “citizens of the state of Wisconsin and residents therein.” The answer to this averment only puts in issue the immaterial fact whether the plaintiffs “reside in the state of Wisconsin.” It does not put in issue, and therefore confesses, the allegation of the complaint that the plaintiffs are “citizens of the state of Wisconsin,” which is the essential jurisdictional fact. The redemption was made on the 30th day of June, 1892, but, by a clerical misprision of the sheriff, the certificate of redemption was dated June 29, 1892.

This clerical error of the sheriff in affixing a wrong date to the certificate did not affect the validity of the redemption. It was the duty of the sheriff to issue a certificate showing the date (lie redemption was made, and, if the first one did not do this, it was Ms duty either to correct the error in that certificate or to issue a new one that did state the date correctly.

If the first certificate was valid, the second did not invalidate it; but if the first certificate was void on account of the error in its date, as contended by the plaintiffs in error, then it was the duty of the sheriff to issue one giving the true date, as was done. But this question is concluded by the findings. The court below found there was this mistake in the date of the certificate. This court is hound to presume this finding was made upon sufficient and competent evidence.

The record does not contain the evidence, and there is nowhere in the record any exception to the introduction of any evidence offered by either party; nor is there any assignment of error based on the reception of alleged incompetent evidence. On the contrary, it ap peats from the record that the case was tried upon a written agree ment that stipulated that “the testimony offered, and all stipulations and admissions heretofore entered into herein, and received upon the former trial,” were to be taken as admitted and proved.

Certainly, if the plaintiffs in error, on the trial below, admitted the error in the date of the certificate, and made no objection to its introduction in evidence on that ground, they will not he heard to make the objeciion for the first time in this court.

I'poji the record, this court will presume that the findings of the court below were based upon admissions or competent evidence, and that there was no objection to the admission of any evidence tending to prove the facts found. it is further contended by the plaintiffs in error that the redemption was void because the affidavit which was filed to show the a mo uni for which the defendants in error claimed to have a lien upon the land, to entitle them to redeem, included two judgments, only one of which was a lien upon the land.

The judgment which was a lion gave the right to make the redemption. ' The plaintiff in error Iloppenstedt, as the holder of the Franzen mortgage, was not prejudiced by the error, for the reason that he did not file within the year allowed for redemption the notice required by the statute of his intention to redeem. The defendants in error were the only persons who tiled a notice of their intention to redeem. They were therefore the only persons entitled to redeem. Ko one else tried to redeem or qualified himself to do so.

Assuming, but not deciding, that the-second certificate was essential co the validity of the redemption, and that it was not recorded within 10 days after the redemption, as required by the statute, that fact, by the terms of the statute, only affects its validity “as against any person in good faith making redemption from the same person or Hen.” The plaintiff in error Hoppenstedt is not such a person. The facts found warrant the judgment of the circuit court, which is affirmed.