20 Wis. 657 | Wis. | 1866
The court commissioner had already made an ex parte order staying proceedings upon the execution for twenty days, when the second application was made to him, upon which he ordered a further stay until the next term of the court. No notice of the second application was given or attempted to be given to Mr. Browne, the attorney of Mr. Hazel-ton the assignee of the judgment, who, by the process of events, had become the only attorney upon whom such notice could properly be served. The statute is explicit that no order to stay proceedings for a longer time than twenty days shall be granted by a judge out of court, except upon previous notice to the adverse party. R. S., ch. 140, sec. 29. The period of time embraced in the second order, “until the next term of this, court,” considerably exceeded twenty days. The unreasonableness of a rule which would allow the force of the statute to be destroyed by a single or a series of ex parte orders staying proceedings exceeding the period of twenty days, is so apparent that further comment, or the citation of authorities, is deemed unnecessary. The second order was wholly unwarranted. It was a nullity, and as such was properly disregarded by the sheriff.
The act of April 28th, 1858, is general. It includes a case like this, where the judgment had been assigned in the lifetime of the judgment creditor, the name of such creditor still being requisite to the process of execution to be issued upon the judgment. If Holmes, the judgment creditor, were still alive, no doubt execution must issue in his name, as has been done here. The act expressly declares that, after the death of the person in whose favor a judgment has been rendered, execution
It is also objected that the venditioni exponas is not a form
But the question which has given us most trouble is that which was suggested at the argument, whether the venditioni ought not to have been addressed to the late sheriff by name, and delivered to him to execute, he being the officer who made the levy and return upon the former writ. It is a general rule, that the officer who commences the execution of process must complete it, even though his term of office may have expired before such completion. This rule, with certain modifications, is recognized by statute. R. S., ch. 13, secs. 105, 106. After the fullest investigation of authorities, we find no adjudged case in which it has been held that a venditioni to sell lands which have been levied upon by a sheriff whose term of office has expired, must be issued to the person or officer who made the levy. There are many cases in which that practice has been recognized as proper, but not as the only proper practice. On the other hand, there are several well considered decisions to the effect that after levy and return of the ft. fa., or execution proper, by a sheriff whose term of office has since expired, the venditioni may be directed to and executed by his successor, or the sheriff in office at the time it is issued. In some of the cases this is considered to be the better practice, though the correctness of the other is not denied. Tarkinton v. Alexander, 2 Dev. & Batt. (N. c.), 87, is such an one. The opinion is valuable as a very full and able discussion of the whole question. See also Fowble v. Rayberg, 4 Ohio, 56, and Lessee of Simner v. Moore, 2 McLean, 59. We think in case of a levy
A question is made as to whether the lien of a judgment can be perpetuated by a levy made before, and a sale after, the expiration of the ten years prescribed by statute. The present statute, E. S., ch. 132, sec. 36, seems to limit the lien of judgments in all cases to ten years from the time of docketing. It was not so under the statute of 1849, in force at the time this judgment was rendered, and the provisions of which are still applicable to it. By that statute the lien continued during the life of the judgment as against the judgment debtor, but in favor of purchasers in good faith and subsequent incumbran-cers by mortgage, judgment, decree or otherwise, it ceased from and after ten years from the time of docketing. E. S. 1849, ch. 102, secs. 5 and 6. The lien of the judgment under that statute is saved by the second section of the repealing act. E. S. 1858, chap. 191. This controversy is between the assignee of the judgment and the judgment debtors, as to whom the judgment was a lien at the time of the sale, and consequently no question as to whether a lien may be continued by the mere force of a levy, is presented.
By the Court — The order of the court below is reversed, and the cause remanded.