Bonesteel v. Orvis

23 Wis. 506 | Wis. | 1868

The following opinion was filed at the February term, 1868. A motion for a rehearing was denied at the October term.

DrxóN, C. J.

Separate appeals from two orders of the circuit court for Eond du Lae county in the same case, affirming previous orders of the judge at chambers, the one setting aside the levy on an execution issued in the action, and the other staying all proceedings on the same execution until an appeal to this court from the judgment in the action should be determined. Both orders at chambers were made on the same day, but the application to set aside the levy was first in order of time, by the service of the motion papers upon the counsel opposed.

First Order.— This order, setting aside tbe levy, was properly granted, because tbe execution issued was not subscribed by tbe party issuing it, nor bis attorney, as required by tbe statute. E. S., cb. 134, § 8. Tbis ground of irregularity was distinctly specified in tbe affidavit accompanying tbe motion, as tbe basis of it, and a copy of tbe affidavit was served with tbe notice of tbe motion. Tbis was a substantial compliance with rule 22, Circuit Court Eules of 1857. Tbe subscribing of tbe execution by tbe attorneys for tbe plaintiffs after, tbe notice of motion was served, and before tbe motion was beard, did not cure tbe defect. Sucb subscription of process in tbe bands of tbe officer, admitting it tó bave been authorized, could operate only prospectively. It bad no retroactive effect. To bave given it tbis effect, an order of court directing tbe amendment was necessary. Tbe plaintiffs applied for no sucb order, and tbe levy was still irregular. Tbe question differs from that presented in Clute v. Clute, 4 Denio, 411, where it was held, that, on filing tbe judgment record, tbe fi. fa. thenceforth became regular.

Nor were tbe defendants estopped from questioning tbe irregularity of tbe execution, because “ they voluntarily turned out tbe property levied upon, to tbe sheriff, without demand, for tbe purpose of having him levy on it, and be did so as they desired.” It does not appear that tbe defendants were aware of tbe irregularity at tbe time they did so. To constitute a waiver of the' irregularity on tbis ground, it should be shown that tbe defendants knew it at tbe time they turned out tbe property.

Second Order. — Tbis order rests on tbe same grounds of irregularity specified for tbe first order, and on tbe additional ground, that all proceedings upon tbe judgment were stayed by an undertaking given on appeal by the defendants to tbis court. The undertaking was insufficient for that purpose, as has been already decided by this court. Bonesteel v. Orris, 20 Wis. 646. As to tbe irregularities set up, tbe defendants were not entitled to bring them forward again as the foundation of a motion to obtain further or different relief against the same execution. A party cannot divide up his objections or claims for relief by several motions, thus doubling or trebling the costs, where complete relief can be granted upon one motion. All known objections or claims for relief against the same irregularities, not urged upon the first motion, are waived. Pierce v. Kneeland, 9 Wis. 30, and cases cited.

By the Oov/rt. — The first order is affirmed, and the second