8 Wis. 376 | Wis. | 1859
We regret that we are unable to decide all the questions which have been argued by the counsel for the parties. The notice of the motion which was served on the appellant, was as follows: “You are hereby notified that a motion with a copy of which accompanying this notice you are now served, will be brought up for argument at the next term of the circuit court, in and for the county of La Fayette, to be begun and held at the court house in Shullsburg, in said county, on the third Monday of April next, to-wit: the 20th day of April, 1857, the same being the first day of said term, or as soon thereafter as counsel can be heard. The object of which said motion, is to set aside, annul and vacate the sales of real estate made upon and by virtue of the executions issued upon the judgment rendered in the above entitled cause in the said circuit court. The said motion is based upon the records, writs and returns thereto, pertaining to said cause in the Supreme Court of the State of Wisconsin, in the said circuit court of La Fayette county.” It appears that the motion to set aside the sales was entertained by the court, it appearing “ that no seal was attached to the execution upon which such sales were made.”
It further appears that the motion which was entertained by the court, specified the grounds upon which it was based, as follows: 1st. “ Because the judgment in this case rendered in the circuit court of La Fayette county, and upon which said execution was issued, has been by the Supreme Court of the State of Wisconsin, vacated, set aside, reversed and wholly for nothing esteemed; and therefore by virtue of the statute of Wisconsin, the purchasers of said real estate, have no right to obtain a title to the same, and said purchasers have, by said statute, a right of recovery against said plaintiff for the amounts by them respectively paid upon said purchases with
The appellant contends that the motion which was decided was irregular, and could not properly be the foundation of any action in the court below, because the party making it did not conform to the rules of court then in force. The rule upon which the appellant relies is Rule Eleven, and is as follows: “ The affidavits, papers or records whereon a motion is to be founded, shall be served upon the attorney of the opposite party, with notice of the motion. After the motion shall have been heard, the papers whereon it was founded or depended, shall be filed with the clerk.”
It appears that no papers were served upon the appellant with the notice of the motion; but a reference was made in general terms to certain records and papers, as the foundation of the motion. This is not a compliance with the rule, and we do not see how the appellee could derive any advantage from a motion thus irregular. The rule is imperative, and the circuit judge should have refused to sustain the motion.
It is to be further observed in this case, that the sales were set aside for a reason not specified in the motion. It does not appear that the question of the effect of the absence of a seal to the execution by virtue of which the sale was made,
We regret that we are unable to decide the question of the validity of these sales upon its merits, but as the appellant insists upon his right under the rule, we have been unable to do so. It has been argued that the rule in question requires the performance of an impossibility, because the party who makes a motion cannot obtain the possession of “ records,” and of course, cannot serve or file them as the rule requires We do not think the difficulty suggested exists in point of fact. Where the moving party relies upon matter which is of record in the court, the common practice is, to incorporate it in an affidavit which he makes, and a copy of which he serves upon the opposite party. This is always held sufficient.
We must, for these reasons, revel se the order of the circuit court.
