16 S.D. 584 | S.D. | 1903
This is an appeal from an order vacating and setting aside certain execution sales of personal property, and granting certain other relief to John S. George, respondent. On January 13, 1899, judgment; was entered in favor of the plaintiff and against the defendants, of which the said George, as executor of the estate of John J. Fayel, was one, whereby it was, among other things, adjudged that the plaintiff recover of the . defendants his costs and disbursements in the Circuit and Supreme Courts, agregating $458.35. Two executions were issued upon this judgment, and three sheriffs sales made thereon. As to the first sale, it is recited in the abstract that “execution in the usual form was duly issued upon said judgment on the 11th day of February, 1901, and delivered to the
In the original action, as before stated, John S. George appears to have been made a party defendant, as one of the executors of the last will and testament of John J. Fay el, deceased, but not in his individual capacity. The motion, however, was made by John S. George, but not in his capacity of executor. It is contended by the appellants that the remedy of John S. George was by an action in the proper court, and not by a motion in this case. In this contention we are inclined to the opinion that the appellants, other than the plaintiff, are correct. It will be noticed that it is not claimed that there was any irregularity or defect in the judgment or executions, and it will be observed that several of the purchasers were not parties to the action. It would seem, therefore, upon principle, that parties purchasing under execution sales, when the executions are valid and the proceedings regular, could not be deprived of the property purchased by them, upon motion, in an action to which they are not parties. And such seems to be the view taker! by the courts. In Bryan v. Berry, 8 Cal. 180, the Supreme Court of California, in discussing this question says: “It was too late to move to set aside
The same rule, however, does not apply to Patrick B. McCarthy, the plaintiff in the action. He being a party to the action, the motion was properly made to vacate and set aside 'the sales under the execution as to him, .and hence it becomes 'necessary to determine (1) whether or not the individual prop
It was evidently the theory of the counsel for Mr. George, and was probably adopted by the court, that George, being a defendant as executor, and not in his individual capacity, was nbt individually liable for the costs in the action, and that the levy upon and sales of his individual property for such costs was illegal and void. It is contended on the part of the appellant, however, that, though the judgment was rendered against said George as executor, he was nevertheless personally liable for the costs of the action, and that the levy upon and sales of his individual property was therefore regular and legal. Our Probate Code and Code of Civil Procedure contain two sections bearing upon this question. Section 5201 in the Code of Civil Procedure under the title of “Costs and Disbursements,” reads as follows: “In an action prosecuted or defended by an executor, administrator, trustee of an express trust, or a person expressly authorized by statute, costs shall be recovered, as in an action by and against a person prosecuting, or defending in his own right; but such costs must, by the judgment, be chargeable only upon, or collected of, the estate, fund, or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant personally, for mismanagement or bad faith in such action or defense. ” And section 58G7 in the Probate Code reads as follows: “When a judgment is recovered, with costs, against any executor or administrator,' he shall be individually liable for such costs but they must be
The contention that John S. George, not being a party to the suit, except in the capacity of executor of the estate of Fayel, was not entitled to make the motion in this action, is, we think, untenable. It is true that in his individual capacity he was not a party, but we are of the opinion that he was so far connected with the action that, in order to protect his personal interests, it was competent for him to make this motion in his individual capacity.
For the reasons before- stated, the order of the Court must be reversed as to John P. McElroy, Joseph VanBuskirk, Cassius M. Leedy, as sheriff of Pennington county, and William P. Baker, as clerk of the courts of the said county; and as to the plaintiff, Patrick B. McCarthy, the order of the Court below is reversed for the reason that the proceedings, including the sales of the property, were regular and legal, so far as this record discloses. The order of the Circuit Court is reversed.