Herbin v. WagonerHerbin v. Wagoner
The defendant appellant had her ease on appeal duly served on plaintiff’s attornеy, who prepared his exceptions thereto and returned the same, with his copy, to an attоrney supposed by him to represent the appellant, without any acceptance оr service by the sheriff. These papers remained with said attorney, and the papers were nеver sent to the judge who tried the case, and no case was settled for this Court by the judge. The appellant had the transcript docketed in this Court with her case on appeal. The plaintiff aрpellee now comes and moves for an order for a writ of certiorari to be issued to the lower cоurt to settle the case, alleging on affidavit, among other things, that said attorney did represent defеndant in the superior court, that service was waived, and an agreement, (verbal) that the papers should be sent to the judge to settle the case, &c. These allega
This Court would be embarrаssed with the unpleasant duty of finding facts at issue between members of the bar but for the statute and rules and dеcisions of this Court to the effect that a case on appeal, or counter case, must be served by the sheriff, unless service be accepted in writing and made a part of the recоrd. This case illustrates the reasonableness of such rules. Assuming, then, for the sake of argument only, that the plaintiff’s allegations are true, that the counsel represented the defendant, we cannot grant his petition for the reason that the waiver is denied and the counter case was neither duly served nor accepted in writing. State v. Price,
1. It appears that certain lands were partitioned among the plaintiffs and confirmed by decree of the court, and that in the division a mistake was made by the draftsman of the commissioners’ report in allotting Lot No. 1 to the heirs of Robert Herbin, instead of W. H. Herbin, and that said lаnd was afterwards sold for assets as the property of Robert and purchased and paid for by Simeon Wagoner, and deed made by order of the court.
2. That subsequently the administratrix of Wagoner sold thе same land for assets, and the defendant Mary E. Wagoner purchased and paid for the land and rеceived a deed under a decree of the court. In June, 1895, the plaintiffs, who were } arties to thе original proceeding, notified defendant to show cause in that original proceeding why said mistake should not be corrected by amending the record therein, and it was adjudged by the court that such amendmеnt be m ade and defendant appealed. In all of said pro
The question is now presented whether the plaintiffs, who were parties to the action in which the mistake occurred, or the defendant, who was not a party and is a purchasеr for value and without notice, shall bear the loss or inconvenience of the mistake.
The law favors protection to innocent purchasers at judicial sales, and all respectable courts have held that they should be protected against irregularities under their decrees when the jurisdiction is complete, even on amotion in the original cause.
The question was well considered by this Court in Sutton v. Schonwald,
In this case it was sufficient for the defendant to see jurisdiction and a finаl decree, and she was justified in presuming that the proceedings, on which the judgment was entered, were regular.
Error.