| Kan. | Jan 15, 1884
Lead Opinion
The opinion of the court was delivered by
The writer is of the opinion that if the district court was convinced, upon the hearing before it, that the return of the officer was not in accordance with the actual facts therein set forth, or that the officer had in any way abused the process, the court had the power to refuse to confirm the sale. The other members and the majority of this court, however, are of the opinion that upon the record, the purchaser at the sale had rights which it was the duty of the court to protect; that as the return of the officer shows after diligent search he was unable to find any goods or chattels of any kind whereon to levy the execution, and as all the proceedings of the sale seem to have been in conformity with the statute, the motion to set aside the sale should have been overruled and the sale confirmed. (Challiss v. Wise, 2 Kan., 193" date_filed="1863-10-15" court="Kan." case_name="Challiss v. Wise">2 Kas., 193; White-Crow v. White-Wing, 3 id. 276; Treptow v. Buse, 10 id. 170; Dewey v. Linscott, 20 id. 684; New England Mortgage Co. v. Smith, 25 id. 622.)
We all agree that it is not absolutely necessary for an officer having an execution to make a personal demand of the judgment debtor for the amount thereof, or notify him he holds an execution against him, before levying upon his real property; that he is only required to exercise reasonable and ordinary diligence to discover whether goods and chattels can be found belonging to the debtor, before levying upon real estate; and he may, under some circumstances, have sufficient knowledge at the issuance of the execution that the debtor has no goods or chattels subject to levy, so that search is wholly useless.
The order of the district court will be reversed, and the case remanded for further proceedings.
Concurrence Opinion
I concur in reversing the order of the district court setting aside the sheriff’s sale; and I do this for the following among other reasons: All the proceedings connected with the sale or upon which the sale was founded, seem to be correct and regular. There was no legal evidence introduced before the district court that even tended to show that such proceedings were not correct and regular; and there was no evidence, legal or illegal, introduced in the district court, sufficient to overturn such sale or to authorize the district court to set it aside. The district court erred in admitting the oral statements, not under oath, of Fred. N. Miller, over the objections and exceptions of the purchaser; but still, such statements, if they had been made under oath, were not sufficient to authorize the district court to set aside the sale. The sale was set aside in all probability upon the ground that the sheriff did not make a sufficient search for goods and chattels or personal property belonging to the judgment debtor before levying upon the real estate of such judgment debtor. Now it was not shown that no such sufficient search was made. Besides, there was no claim or pretense made in the district court that the judgment debtor had any goods, or chattels, or personal property exempt from execution upon which the sheriff might or could have levied. For these reasons, I think the district court erred in setting aside the sheriff’s sale.