Moreland v. Bowling , 3 Gill 500 ( 1846 )

Chambers, J.,

delivered the opinion of this court.

Where process is duly returned, the party affected by it is bound to take notice of the proceeding; and in proper time, and while the process is before the court, move for any order or judgment in relation to it.

Parties have a day in court, for the purpose of being heard; and failing to avail themselves of it, they must thenceforth submit to the injury or inconvenience which their own neglect has occasioned.

The present case, however, is not embraced by these principles, which regulate the general practice, and which we do not mean to disturb. The return of the sheriff was not made to the term at which the writ was returnable, nor could it be, as the sale was made at a day subsequent to the return day. To require a party to take exception to a sale, under a ft. fa., at the term to which the writ is made returnable, as a universal rule, (as contended for by the appellee’s counsel,) would be a manifest denial of justice.

A sheriff may retain a fi. fa. in his hands, after a levy, and after an ineffectual effort to sell, not only until the return day has passed, but until several terms have passed, and may then sell. It is at the option of the plaintiff to rule a return of the fi. fa. and issue a vendi. exponas; or to allow the sheriff to continue to act under a fi.fa.

Now, in such a case, where the sale has not been made until two terms have passed, would it not be a mockery to say to an injured defendant, or his other creditors, that redress would have been given if the application had been earlier? The law requires no such impossibility, as to move to set aside a sale before it is made. It is sufficient that it be made at the term, to which the writ is in fact returned.

In this case, the return was placed in the clerk’s office in vacation;—it was not in any proper sense “returned to the court” at that time, for the court was not in session. It must be regarded as made to the ensuing August term, and at that term the motion was made.

It is objected, that the record states the return to he made to the March term, and cannot be contradicted. The record also states, that the return was not made pursuant to the command of the writ, and a rule is entered requiring the return, but not limiting any particular day therefor. But, on motion of this kind, it is the necessary and uniform practice, to .examine into all the facts by parol or other proof, and not regard technical estoppels.

The authority of the court being shown, to examine into the facts, there can be no doubt of the propriety of granting the motion to set aside the sale.

Without going into the other considerations, which might lead to the same result, it is sufficient, that legal notice has not beén given.

The sheriff himself, proved, that the notice of sale had been published in a newspaper;—and set up at the court house door, and at “no other place.” The act of 1816, chap. 129, is express, that notice should be set up at two or more public places in the county, besides the court house.

JUDGMENT REVERSED WITH COSTS-RULE TO SHEW

CAUSE MADE ABSOLUTE-AND CAUSE REMANDED.