55 Iowa 503 | Iowa | 1881
— I. The cause is submitted for our decision upon an agreed statement, which presents the following material facts in the case. The plaintiff recovered a decree foreclosing a mortgage and directing the sale of the land conveyed, which is described in the mortgage as the south half and the west half of the north half of the southeast quarter of section twenty-five, etc., containing one hundred and twenty acres. A special execution was issued which described the .land as follows: South half of the west half of the north half of the southeast one-fourth of section twenty-five, etc. The land
II. It is not disputed by the counsel for defendants that the courts will, in cases of mistake like the one before us, grant relief by setting aside the sheriff’s sale, if the j>arty seeking the relief is not chargeable with negligence. Snyder v. Ives, 42 Iowa, 157. There is no difference of opinion among counsel of the respective parties as to this rule of the law. The only duty imposed upon us in this case is to apply the rule to the facts disclosed by the record.
It is not stated or shown in the abstract that plaintiff or his attorney is chargeable with negligence, nor are any facts shown from which negligence may be inferred. It is shown that the mistake of the clerk was not known to the attorney until he was making settlement with the sheriff for the costs. It does not appear that the plaintiff himself had any personal
III. Counsel for defendants insist that plaintiff had an adequate remedy by a motion, and, therefore, he cannot seek relief by an action in chancery. In reply to this objection it is only necessary to say that the abstract does not show it was in any manner urged in the court below. It cannot be first made in this court.
The judgment of the Circuit Court is
Affirmed.