Holmes v. McIndoe , 20 Wis. 657 ( 1866 )

Dixon, C. J.

The court commissioner had already made an ex parte order staying proceedings upon the execution for twenty days, when the second application was made to him, upon which he ordered a further stay until the next term of the court. No notice of the second application was given or attempted to be given to Mr. Browne, the attorney of Mr. Hazel-ton the assignee of the judgment, who, by the process of events, had become the only attorney upon whom such notice could properly be served. The statute is explicit that no order to stay proceedings for a longer time than twenty days shall be granted by a judge out of court, except upon previous notice to the adverse party. R. S., ch. 140, sec. 29. The period of time embraced in the second order, “until the next term of this, court,” considerably exceeded twenty days. The unreasonableness of a rule which would allow the force of the statute to be destroyed by a single or a series of ex parte orders staying proceedings exceeding the period of twenty days, is so apparent that further comment, or the citation of authorities, is deemed unnecessary. The second order was wholly unwarranted. It was a nullity, and as such was properly disregarded by the sheriff.

The act of April 28th, 1858, is general. It includes a case like this, where the judgment had been assigned in the lifetime of the judgment creditor, the name of such creditor still being requisite to the process of execution to be issued upon the judgment. If Holmes, the judgment creditor, were still alive, no doubt execution must issue in his name, as has been done here. The act expressly declares that, after the death of the person in whose favor a judgment has been rendered, execution may issue tbeieon in tbe same manner and witb like effect as though such person were still living. The provisions of the second section of the act as to payment of the moneys collected to the executors, administrators or heirs of the deceased judgment creditor, or the disposition of the same by the probate court, were not intended to limit the operation of the general language contained in the first section. They are special provisions for those cases, which the change in the law seems to have made necessary. In case of controversy between the as-signee of a judgment and the executors, administrators, heirs or others, as to the existence or validity of the assignment, that would be a question to be settled by the court in which the judgment was rendered, upon proper application, or by any other tribunal having jurisdiction. It is objected that the judgment is irregular, and must be amended before it can be executed; that the proper names of the defendants must be inserted by order of the court before execution can issue. This same judgment was under consideration in McIndoe v. Hazelton, 19 Wis., 567, and we then said that we thought it valid without amendment, under section 40, chap. 125, E. S., which declares that the court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party. If the defect in the judgment does not affect the substantial rights of the defendants, then the execution ought not to be set aside, where it appears from the whole record to have been issued against the proper persons by name, even though the clerk or attorney who issued it possessed no power of amendment over the judgment. That power is conceded to be in the court. But the power to correct irregularities and the duty of disregarding them are very different things. The duty of disregarding errors and defects extends as well to those which intervene in the process of execution as in the judgment itself, provided no substantial right is effected.

It is also objected that the venditioni exponas is not a form of execution now in force, and that executions can only be issued in the manner prescribed by chapter 134, R. S. This objection fails for the reason that a venditioni is not an execution in the proper sense of that word. It is more in the nature of a mandate or order requiring the sheriff to proceed to the execution of the former writ, which is still regarded as the foundation of his proceedings; and as such process was formerly issued by the clerk without an order of court, we think it correct practice that it should be so'issued now.

But the question which has given us most trouble is that which was suggested at the argument, whether the venditioni ought not to have been addressed to the late sheriff by name, and delivered to him to execute, he being the officer who made the levy and return upon the former writ. It is a general rule, that the officer who commences the execution of process must complete it, even though his term of office may have expired before such completion. This rule, with certain modifications, is recognized by statute. R. S., ch. 13, secs. 105, 106. After the fullest investigation of authorities, we find no adjudged case in which it has been held that a venditioni to sell lands which have been levied upon by a sheriff whose term of office has expired, must be issued to the person or officer who made the levy. There are many cases in which that practice has been recognized as proper, but not as the only proper practice. On the other hand, there are several well considered decisions to the effect that after levy and return of the ft. fa., or execution proper, by a sheriff whose term of office has since expired, the venditioni may be directed to and executed by his successor, or the sheriff in office at the time it is issued. In some of the cases this is considered to be the better practice, though the correctness of the other is not denied. Tarkinton v. Alexander, 2 Dev. & Batt. (N. c.), 87, is such an one. The opinion is valuable as a very full and able discussion of the whole question. See also Fowble v. Rayberg, 4 Ohio, 56, and Lessee of Simner v. Moore, 2 McLean, 59. We think in case of a levy on land, and a return of property unsold for want of bidders or other cause, that tbe venditioni may go either to the officer who made the levy or to the sheriff in office at the time, and hence, that the venditioni in this case was properly directed and executed. This practice is of course confined to levies upon land. Chattels seized on execution are governed by a different rule. They pass to the possession of the officer making the seizure, and he acquires a property in them, and may sell without a venditioni, or, if one is issued, it must be to him, whether his term of office has expired or not.

A question is made as to whether the lien of a judgment can be perpetuated by a levy made before, and a sale after, the expiration of the ten years prescribed by statute. The present statute, E. S., ch. 132, sec. 36, seems to limit the lien of judgments in all cases to ten years from the time of docketing. It was not so under the statute of 1849, in force at the time this judgment was rendered, and the provisions of which are still applicable to it. By that statute the lien continued during the life of the judgment as against the judgment debtor, but in favor of purchasers in good faith and subsequent incumbran-cers by mortgage, judgment, decree or otherwise, it ceased from and after ten years from the time of docketing. E. S. 1849, ch. 102, secs. 5 and 6. The lien of the judgment under that statute is saved by the second section of the repealing act. E. S. 1858, chap. 191. This controversy is between the assignee of the judgment and the judgment debtors, as to whom the judgment was a lien at the time of the sale, and consequently no question as to whether a lien may be continued by the mere force of a levy, is presented.

By the Court — The order of the court below is reversed, and the cause remanded.