18 Haw. 307 | Haw. | 1907
OPINION OF THE COURT BY
Tlie plaintiff appeals from a decree dismissing Ms bill to-set aside an execution sale of three parcels of his land valued at about $11,760 which were sold by the high sheriff July 5, 1904, to the defendant Van Gieson for sums aggregating $535. The facts material to the case which are averred in the bill and either admitted in the answer or which we find from the evidence are as follows:
The defendant Pratt, when assessor and collector of taxes, brought an action “in his official capacity” December 7, 1903, against the plaintiff in the district court of Honolulu to recover $488.60 taxes for the years 1900, 1901 and 1902. The summons, which included a statement of the claim, was issued the same day returnable December 11 and was served that day upon the plaintiff by the officer delivering to him a true copy. The plaintiff not appearing the district magistrate on December 18 adjudged him to be in default and rendered judgment against him for $540.11, the sum claimed, with the statutory penalty and costs, upon which judgment execution was issued December 19 against the personal property of the plaintiff and returned unsatisfied January 7, 1904, the officer’s return setting forth that he had “Executed the within writ by making a due and diligent search within the judicial district of Honolulu, Island of Oahu, Territory of Hawaii, for personal property belonging to the within named C. B. IVIaile and subject to execution and no such property can be found within said judicial district.” Thereafter another execution, the date of which does not appear, was issued directing levy upon the plaintiff’s personal property “and if sufficient cannot be found then upon his real property” and to sell the same or so much
The prices obtained at the sale were exceedingly disproportionate to the value of the land.
The plaintiff’s motions were properly denied. There was no defect in the service as the statute does not require that in district court cases a certified copy of summons be served or that, the original be either read or shown. If the service had been defective the plaintiff’s appearances in his motions were-not special 'appearances for the sole purpose of objecting to defective process or to the jurisdiction of the court over his person and would properly have been held to be general appearances waiving defects and irregularities in service of process. An objection to jurisdiction over the person cannot be submitted at the same time with an objection to the jurisdiction over the subject matter. See Fitzgerald v. Fitzgerald, 137 U. S. 106. If the plaintiff had any defense on the merits he should
The execution against the personal property only was authorized by the statute providing in cases of suits for "taxes that ‘‘execution may issue upon any judgment rendered in any such suit which may be satisfied out of any real or personal property of the defendant in any such suit, without other or further authority.” Sec. 1269 R. L. The alias execution, issued ‘ Svithin one year after the return day of that which preceded it,” was authorized by Secs. 1807 and 1809 R. L.
The plaintiff had been informed of the amount of the judgment and his agent had agreed to pay it the second execution having therefore been withdrawn. He was notified by the high sheriff’s notice of sale, posted xxpon his premises, that they were proposed to be sold upon execution. The levy was sufficiently made by advertising in the newspapers and by posting the notices in public places and upon the premises. It was unnecessary to .aver in the complaint, which was included in the summons in the form of a statement of the claim, that the money sued for was for the use of the Territory. Actions for taxes may be brought by the assessor “in his own name on behalf of the Territory.” Sec. 1269 R. L. The appointment of the new assessor and collector, made after the first and before the third execution, did not require that proceedings be revived in the name of the new officer. “The successor of any assessor or deputy assessor shall be invested with the same powers and be subject to the same duties and liabilities as his predecessor, and shall collect all taxes then unpaid, and shall carry on any proceedings commenced by his predecessor.” Sec. 1193 R. L.
The broken promises to pay the judgment justified the high sheriff in refusing to take the plaintiff’s bids unaccompanied by a cash deposit. The sale to the subordinate by the high sheriff was not illegal and does not appear to have been the result of
The grossly inadequate prices brought at the sale are claimed by the plaintiff in his bill to have been the result of the protests of his representative and upon this view it might be necessary to hold that he cannot be relieved from consequences which he brought upon himself. .But whether the protest had been made or not the result of deterring persons from bidding would .have followed unless, indeed, the high sheriff had improperly withheld the information concerning the order forbidding the sale which was a material fact which in good faith ought to have been made known to intending bidders. Undoubtedly it was the existence of the order which made the sale disastrous. The maxim applies actus curiae neminem gravabit, no one should suffer for the act of the court not induced by his own fraud, deceit or other misconduct. The plaintiff’s course prior to the sale was not such as to entitle him to consideration in a court of equity. It caused needless expense not only to himself but to the defendants and the Territory. Such practice is not to be encouraged, but orders must be obeyed unless the clearest reasons be shown for disobeying them.
The consequence of making the sale in defiance of the order and obtaining grossly inadequate prices is that the sale must be set aside and a reconveyance ordered upon the plaintiff within five days paying into court a sum equivalent to the unsatisfied balance of the judgment and the purchase money with interest and costs of court, upon which payment the decree appealed from will be reversed, otherwise it will stand affirmed.