9 Wis. 15 | Wis. | 1859
This cause has been before this court at a previous term, where the questions involved were fully considered, and a decision was given, which is reported in 5 Wis. R., 354. The respondent, on that occasion, had appealed irom an order of the circuit court refusing to vacate tho order of confirmation and set aside the sale. The grounds upon which this application was founded need not be further referred to than to say, that one of the principal reasons urged upon the consideration of the court for setting aside the sale, was surprise on the part of Hoover as to the time, manner and circumstances under which the sale took place ; and for an intelligent understanding of the cause, it is proper also to add, that the circuit court did, in the first instance, set aside the order of confirmation, and permit Hoover to attack the regularity and integrity of the sale, by introducing testimony directed to that object. This testimony is fully printed in the report of the case referred to. Upon the hearing of the application to set aside the sale on the merits, and upon all the evidence offered, in support of, as well as to impeach the validity of the sale, the circuit court was led to the conclusion that the sale ought not to be set aside, and then proceeded in effect to confirm the same by restoring the previous order of confirmation. The case then came to this court, and it was elaborately argued by counsel, on. both sides, and all the considerations which should induce a court of equity to reverse the action of the court below and order a new sale, were forcibly pressed upon our attention. But a majority of the court then thought no good and sufficient cause had been shown for setting aside the sale, and the order of the circuit court, refusing to set aside the sale, was affirmed. At the same time we were of the opinion that the proof of the publication of the notice of the sale was defective in a certain particular, and that the order of confirmation had been erroneously en
It now appears that at a subsequent term of the circuit court, another application was made to have the case opened and the sale set aside. A rule or order was obtained, requiring the appellant to appear and show cause why this should not be done. This application was founded upon the affidavits of A. Bade and of Hoover. The affidavit of Bade discloses some new matter not before the court at the former hearing, and which, it is now insisted, authorized and warranted the circuit court in setting aside the sale. This testimony was to the effect that the witness, Bade, attended the sale, and was prevented from bidding upon the property from certain statements then made to him by Brigham, the solicitor of Hill, to the purport that the matter had been satisfactorily arranged with Hoover, and that in consequence of these statements then made, Bade omitted to bid and protect Hoover’s interest, as he otherwise would have done. This new matter, contained in Bade’s affidavit, and in the oral testimony he gave before the court on the hearing, is as fully, distinctly and unqualifiedly contradicted by Brigham, as testimony well can be. And, although I entertain very clear notions as to the effect to be given to these conflicting statements, and the credit to which, under the circumstances, they are entitled; still it does not become necessary, from the view we have taken of the case, to state my conclusions upon the evidence, and I therefore dismiss that subject without further comment. This case will be disposed of upon another ground, which I will now proceed to announce.
In our opinion, the action of the circuit court in setting aside the sale and order of confirmation, theretofore entered, was erroneous and must be reversed. The question as to