138 Wis. 368 | Wis. | 1909
The defendant Zieger appeals from an order denying his motion to vacate a judgment entered upon cog-novit in favor of the plaintiff and against Zieger and one Keingruber, while the impleaded defendant, James B. Day, a purchaser at execution sale under said judgment, appeals from an order setting aside the sheriff’s sale and the sheriff’s deed to Mr. Day thereon.
Taking up separately the appeal of Zieger. It appears that on May 11, 1906, the plaintiff Kissinger had judgment on cognovit in the circuit court for Milwaukee county against
The proposed answer averred in substance that the indebtedness for which the note was given was that of Eeingruber
The plaintiff showed in opposition that the note referred to in the answer was given on April 24, 1905, in renewal of a prior note of Zieger and Eeingruber for $500, the consideration of which was money loaned by the plaintiff at the request of Zieger to Reingruber. One of plaintiff’s attorneys presented an affidavit showing that the note in question was received for collection in the early part of May, 1906, and demand of payment was made from Eeingruber and attempted to be made from Zieger, but the latter was not found at home, and that on May 21, 1906, a letter had been mailed by this attorney to Zieger notifying the latter that judgment had been entered upon the note. This letter was properly mailed and contained on the envelope a direction to return the letter to the writers if not called for within five days, and the same was never returned. The execution to the sheriff of Milwaukee county was not issued until after the Washington county execution was returned unsatisfied. On July 24, 1907, Rein-gruber was adjudged a bankrupt. It appeared that Zieger lived about one and a half miles from the postoffice at South Germantown, Wisconsin, and that all first-class mail received there addressed to Zieger is either delivered to him personally or forwarded by the next train after receipt thereof to Zieger at Rockfield, Wisconsin, a village about one and a half miles distant from Zieger’s residence. The undersheriff of Milwaukee county presented an affidavit that during the time in question it was the custom of that office to notify the person
Upon the foregoing facts the circuit court properly refused to vacate the judgment. When the motion was submitted for decision to that court it appeared, as indicated in the foregoing statement of facts, that the alleged defense of Zieger with reference to his intoxicated condition at the time of signing the note in question and the procurement of such signature by plaintiff’s agent would constitute no defense to the action available on this motion, because the note so procured was merely given in renewal of a prior note unimpeached and founded upon a valuable consideration. Zieger therefore showed no equity to have the judgment vacated, no matter what the facts were as to notice or knowledge of the entry of the judgment. Matteson v. Ellsworth, 33 Wis. 488; Kremer v. Sponholz, 129 Wis. 549, 109 N. W. 527. Courts exercise an equitable supervision over judgments entered upon warrants of attorney, and the party moving to set aside such judgment must show that he has been subjected to some injustice before the court will interfere. It is not sufficient for him to aver mere technical errors or irregularities. Van Steenwyck v. Sackett, 17 Wis. 645; McIndoe v. Hazelton, 19 Wis. 567; Herfurth v. Biederstaedt, 43 Wis. 633.
Considering the appeal from the order vacating the execution sale and sheriff’s deed, it appears that that order was made by the circuit court upon the following grounds assigned :
“(1) By reason of the inadequacy of the price paid by James B. Day. (2) The general equities of the case. (3) The attempts made in Washington and Milwaukee counties to levy upon the personal property of the defendant Zieger (a) in his absence; (b) without making personal demand upon him for payment of the execution upon said judgment.”
There were also these irregularities existing, but not noticed by counsel: In the sheriff’s return to the execution he certifies that on June 16, 1906, he advertised the property for sale to take place on the 30th of July, 1906, by posting a printed notice thereof in three public places in the ward in which the property was situated, and by posting a printed notice thereof in three public places in the Seventh ward of the city of Milwaukee more than six_weeks prior to said sale, and that he caused a like notice to be publicly advertised for six weeks successively by causing a copy of such notice to be printed once in each week during the six weeks immediately preceding said sale in the Milwaukee Sentinel, a public newspaper, etc., the first publication being on June 16, 1906, and he refers to a copy of the notice with the printer’s affidavit of publication annexed.
It is only by inference from the words “like notice” that we can gather that the posted notices specified the hour of sale. Again, the return on the last execution shows that duplicate certificates of this sale were made and delivered on August 9, 1906. No other proof of the form, contents, or date of these certificates of sheriff’s sale was before the court. An affidavit showed that Day paid the amount of his bid on the day of sale, but the sale was not consummated until this certificate of sale was executed and delivered to the purchaser. Briscoe v. York, 53 Ill. 484. The deed was issued to the purchaser within fifteen months from August 9, 1906. This was an irregularity.
A line of precedents on this subject is that represented by
We think this is a case where gross inadequacy of price, lack of actual notice or knowledge of the sale, and some irregularities conjoin to uphold the decision of the court below. A point is made that the circuit court should not have proceeded to set aside this sale and sheriff’s deed upon affidavits and order to show cause, but should have required the plaintiff to bring an action. Our statute provides that in the case of a question of fact arising upon such hearing the question may be referred, which means that evidence may be taken and witnesses examined. Subd. 3, sec. 2864, Stats. (1898). No request was made to have this done; consequently that right on the part of the appellant was waived. As a consequence we think there was no error prejudicial to the appellant Day in this proceeding.
By the Court. — The orders of the circuit court are affirmed upon both appeals, with costs in favor of the respondent Kissinger against the appellant Zieger, and in favor of the respondent Zieger and against the appellant Day.