Downing v. Brown

3 Ky. 181 | Ky. Ct. App. | 1808

The Opinion of the Court_In this case the court below, on the motion of Barbee, without any previous notice of the motion having been given to Downing, quashed an execution obtained by Downing against Brown and Barbee, because (as the bill of exceptions states) a horse, the property of William Brown, had been taken under a former execution on the same judgment ; that the sale of the horse had been legally advertised by the sheriff, arid the horse exposed to sale ; that whilst said horse was selling, one hundred dollars was bid for him ; that another person present bid two hundred dollars, in out lands or back lands ; which last bid the sheriff cried several times, and then returned to and cried the bid of one hundred dollars for some t.itne, and struck off the horse to the person bidding the one hundred dollars, as the highest bidder. It also appears by the bill of exceptions that the bidder of the one hundred dollars retracted his bid before the horse was struck off to him ; alleging that the bid of two hundred dollars had released him from his bid; and also, that he had examined the horse, and found him not to be sound. It also appears that the sheriff afterwards sold the horse for less fohn one hundred dollars.

Downing objected to, the motion, because notice of the motion ha^ not been given him ; in which he was overruled by the court. He then prayed a continuance Until the next term, to produce his testimony; in which he Was also overruled by the court.

This court is of opinion that when a motion is made |o quash an execution, on account of any irregularity, not appearing on the face of the proceedings, but which is to be made out by parol proof, a notice or rule to shew cause, ought to be served or given ; without which, the defendant in the motion will be taken by surprize, and cannot be prepared with his witnesses to controvert the facts, although with reasonable notice of the motion he might be able successfully to do so.

This court is also of opinion the court below erred in quashing the execution for the causes stated in the bill of exceptions. The bid of two hundred dollars in out lands, was not such a bid as the sheriff should have cried or in any way regarded, and must be considered as entirely nugatory. He did right in returning to and crying the bid of ope hundred dollars, which W4% the high* est legal bid given.

This court cannot think either the circumstance of the bidder of the hundred! dollars retracting his bid before,, or refusing to pay the money after, the hprse was struck off to hitq, could, authorise the court to, quash the execu^ tion and proceedings. It is the duty of the sheriff to sell the property tp the highest bidder, who wiU.pay the mo, ney bid ; and he ought not to part with th.e property until the money is paid, If the party bidding refuses to, pay, the sheriff should cry the property again, and sell it for whatever price he can really get; which in this case was very properly done by the sheriff.

Judgment reversed.^*

* A bidder at auflion may retraft his bid before the lot, is tried offto, ⅛⅛, —.3 Term Rep. 14$, JEfp. &ti. ffri. 16,