Sears v. Low ( 1845 )

The Opinion of the Court was delivered by

Young, J.^*

This was a motion made at the October term of the Peoria Circuit Court, 1840, by Low, the defendant in error, who was plaintiff below, to set aside an execution issued at his instance on a judgment obtained by him in that Court, at the May term 1838, against Sears, for the sum of $572-90 damages and costs of suit; and,-also, to vacate the sale of the real estate subsequently made by the sheriff thereon in the execution of the said writ. The error assigned by Sears, the plaintiff in error, is, that the motion was improperly entertained by the Court below, and an ex parte order erroneously made thereon setting aside the execution, and the levy and sale made thereon by the sheriff, without notice to Sears, who was defendant in the judgment upon which the execution was issued.

It appears by the record filed in this case, that Low, the defendant in error, recovered a judgment at the May term of the Peoria Circuit Court, 1838, against Sears, the plaintiff in error, for the sum of $572-90 damages and costs, with an agreement that the execution should be stayed until the first day of the following month of September; that on the 31st of October, 1838, Low caused an execution to be issued on said judgment for the said sum as damages, and $8-87 costs, directed to the sheriff of Peoria county, and returnable in ninety days from the date thereof; and that said execution came to the hands of the said sheriff, and was afterwards returned by him to the Clerk’s office, with the following indorsements thereon:

1. “The within execution came to my hands this 1st day November, 1838, at 2 o’clock.”

2. “Received on the within execution the sum of $175-78, in part payment of the same. January 21st, 1839.

Thomas Bryant, S. P. C.”

3. “Levied on lot No. 9 in block No. 37 in Hale’s addition to Peoria, and sold the same for $450-50, this 21st of January, 1839. Thomas Bryant, S. P. C.”

There appears also among the papers in the suit, but not attached to the execution, a certificate of appraisement as follows, to wit:

“We, the undersigned, having been summoned and sworn by Thomas Bryant, sheriff of Peoria county, to value and appraise lot No. 9 in block No. 37, in Hale’s addition to Peoria, do value the same at $2500. Given under our hands and seals this 21st of January, 1839.”

“Samuel Veacock, [seal.]

Abraham Laveille, [seal.]

Seth Fulton,” [seal.]

At the October term 1840, Low, by his attorney, submitted a motion to set aside the execution, levy and sale, and had judgment at the same term, without notice to Sears, and without any appearance on his part, sotting aside the execution and sale of the lot in Peoria, made thereon by the sheriff, and awarding an alias execution upon said judgment.

Per Curiam.

This judgment is erroneous, as no notice of the motion appears by the proceedings to have been given to Sears, which we hold was necessary, as the parties were out of Court, before such an order could próperly have been made to the prejudice of the defendant, without affording him an opportunity of showing that there was no irregularity in the execution itself, or in the sheriff’s conduct under it in making the sale, or of making a cross motion, if necessary, to correct the irregularities complained of, if they were informal and voidable only, and of such a character as would authorize the making of such amendments.

Judgment reversed with costs.

Judgment reversed.

* Wilson, C. J., did not sit in this case.