Bernard v. Herzog

12 Mont. 519 | Mont. | 1892

De Witt, J.

If the plaintiff’s acts were such as, even inadvertently on the part of plaintiff, to lead the defendant, or his attorney who was representing him, to honestly believe that he, the plaintiff, intended to let the execution rest for a reasonable time, until the money arrived for its satisfaction, which money was said to be on the way, it would seem that the action of the court below in setting aside the execution sale should not be disturbed.

On February 9th defendant’s attorney says that he gave plaintiff information, which it is apparent was to the effect that money had been sent by some one for the purpose of satisfying the judgment. This witness says the plaintiff expressed himself as satisfied with this arrangement, that is, that he said, “All right.” This is denied by plaintiff, but it seems that credit was given by the court to the defendant’s version of the facts, and there was evidence, upon the motion, to sustain the court’s position in this respect.

Defendant’s contention on the motion was that the plaintiff led liim, or ins attorney representing him, to believe that the execution would be held for some reasonable length of time. That the attorney so believed is perhaps further evidenced by the fact that he did not ask for a further extension of the stay of execution. When the conversation of February 9th took place, the execution sale was then in advertisement. Of this the defendant, and his attorney who represented him, were not aware. But this fact is of importance only in this respect, that the omission of defendant’s attorney to ascertain whether advertisement had been made may have had some weight with the court below in determining that the defendant, or his attorney, had reason to believe, in the conversation of February 9th, that plaintiff intended not to push the execution.

Two days after February 9th, to wit, February 11th, the execution sale took place. There was, therefore, no long lapse of time between the conversation of February 9th and the sale, and no laches on the part of defendant, if it be true that his version of the interview of February 9th was the true one, or if he believed it to be the true one. If the defendant honestly believed, as the District Court must have thought he did, that plaintiff intended to wait for the arrival of the draft mentioned in the telegram, he did not take undue advantage of plaintiff’s leniency by neglecting the matter for any considerable length of time. Again, the sale was on February lltli, and the motion to set it aside was filed on February 13th, so that it appears that defendant at once sought relief. This may have been another fact which satisfied the District Court that the defendant, through inadvertence, allowed the execution sale to proceed.

The defendant does not ask to have the judgment set aside. He admits its validity, and he makes a showing of some diligence in endeavoring to pay it; all he asks is that the sale be set aside, by virtue of which his property was disposed of. He offers to pay the judgment on the vacation of the sale. This secures all the rights of the judgment creditor.

We are satisfied that the District Court did not err in setting aside the sale. Therefore the order is affirmed.

Affirmed.

Blake, C. J., and Harwood, J., concur.