36 Wis. 101 | Wis. | 1874
This is an appeal from an order setting aside a sale upon an execution. The motion to vacate the sale was made before the time for redemption had expired, by the execution creditor. The grounds of the motion were:
1st. That the execution was not indorsed by his attorney, and that the sheriff has indorsed no return thereon.
2d. That the plaintiff • was not informed of the sale until long after it occurred, the sale having been made February 17, 1871, and the plaintiff discovering it for the first time, May 13, 1872.'
3d. That the property sold on the execution was worth $25,000, and that the price bid was “grossly inadequate,” and was a fraud upon his rights.
The amount of the plaintiff’s judgment was $4,287.12, while
It is admitted that tbe execution was not indorsed or subscribed by tbe party issuing it, or by bis attorney, and that tbe officer making the sale has made no return upon tbe execution of bis doings by virtue of the writ. These were undoubtedly irregularities for’ which tbe sale might be vacated. Our statute, among other things, provides that tbe execution must be “ subscribed by the 'party issuing it, or his attorney ” (sec. 8, ch. 134, R. S.), and correct practice requires such an indorsement. It is argued that these irregularities in the execution are merely technical defects, not affecting the substantial validity of the sale, and were amendable by the court which had jurisdiction of the writ. It is sufficient to say, in answer to this argument, that no cross motion was made on the part of the purchasers to amend ; and when we consider some matters stated in the various affidavits used in support of as well as in resisting the motion to vacate the sale, we are not prepared to say the court erred in the exercise of its power by giving full weight to technical irregularities in the fi. fa. Some facts are given, which, if not inconsistent with the fairness of the sale, show at least that the ends of justice may be promoted by setting the sale aside. It is deemed unnecessary to dwell upon those facts at any length, and they will be only alluded to for the purpose of vindicating the correctness of the order of the court below.
It must be admitted that the judgment creditor was not consulted by his attorney in regard to the issuing of the execution, and knew nothing about the sale. He had, therefore, no opportunity to protect his rights by bidding upon the property or by giving any directions which would prevent a sacrifice of the property at the sale. It appears also-that his attorney, Mr. Park, did not attend the sale. Indeed, he says that, in order to collect costs and fees, he caused an execution to be issued, and directed the sheriff to levy upon the interest of the judg
By the Court. — The order of the circuit court, setting aside the execution and vacating the sale, is affirmed.