10 Wis. 101 | Wis. | 1859
By the Court,
This is an appeal from an order of the Circuit Court of Jefferson county, by which the sheriff was adjudged guilty of a contempt, for not executing a writ of assistance, and fined ten dollars and costs. The general rule in relation to convictions for contempt is, that there is no appeal. But there is a very clear distinction between those
The material facts appearing from the affidavits and answer of the sheriff to the interrogatories' on the attachment, are these: In the suit of Chappell vs. Cooley and others, a judgment of foreclosure has been rendered, and the premises sold and bid in by Chappell. A deed was executed to him as purchaser, and he then, by his agent, demanded of Cooley the possession of the premises, which Was refused, Cooley being the mortgagor and principal defendant, and being in possession at the time. A writ of assistance was then procured, and delivered to one of the sheriff’s deputies. Proceedings on the writ were stayed by several orders, which were successively vacated; and the deputy went to the premises and still found Cooley in possession. Cooley went out, and came back with Chadwick, who then set up the claim of ownership, under a sale in proceedings, to enforce a mechanic’s lien, accruing prior to the mortgage; and that Cooley was in possession under him, as his tenant at will. Chad
The counsel for the appellant urged upon us, with much force, the general principle, that judgments do not affect the rights of those not parties, and' that it would be great injustice to have the writ of assistance executed here, against Chadwick, who was not a party to the foreclosure suit, and who claimed under a prior and paramount title. And in support of this position, he referred us to Pelletreau vs. Frelinghuysen et al., 4 Paige, 204; Van Hood vs. Throckmorton, 8 Paige, 33; Boynton vs. Jackway, 10 id., 307; Miller vs. Estell, 8 Verg., 452; Littel, 304.
These authorities undoubtedly establish the doctrine, that when it appears to the court, on an application for a writ of assistance, that a person is in possession, who was not a party to the suit, and claims, not under a" party after suit commenced, but under an adverse title, the court should refuse the writ; because such an adverse claim should not be tried upon such a summary proceeding.. But we think this rule does not reach the question presented here. Whether a court should issue a writ in such a case, is one question; but whether, being issued and placed in the hands of an officer, he can institute an inquiry into'the rights of various parties who may claim to be in possession, and execute or refuse to execute his writ, according to his decision upon the facts, is entirely a different question; and we do not think he has any such right. If the court ought not to determine upon adverse claims, upon an application for the writ, surely the officer ought not to determine them, after the writ is issued. Such determination is no part of his function. His duty is to ex
The order appealed from is affirmed, with costs.