Wilson v. Gray

SULLIVAN, C. J. This is an appeal from an order of the-court, denying the defendants’ motion to set aside the decree-entered in said entitled case, and to quash the order of sale-issued on said decree, and to set aside the service of said order of sale, as well as the sale made thereunder; also from the-order of the court granting plaintiffs permission to amend said! order of sale. It appears from the record that this action was brought for the foreclosure of a certain mortgage. A judgment and decree of foreclosure was obtained, and the mortgaged property ordered to be sold. Thereafter an order of sale entitled “Execution in Foreclosure” was issued by the clerk of said court, and the property described in said mortgage was sold, and due return of said execution or order of sale made-by the sheriff, on the sixth day of July, 1895. Thereafter, on. the seventh day of February, 1896, appellants, the Grays, made-the motion to quash and set aside sale above referred to; and on the tenth day of April, 1896, the motion was denied by the-court. It is conceded by the appellants that the only question for determination is the validity of the order of sale. If that is sufficient to sustain the sale made under it, the action of the-■'lower court should be affirmed. Section 4473, of the Eevised Statutes, provides for'the issuance of a writ for the enforcement of a decree of foreclosure, and, among other things, provides as follows: “When the judgment requires the sale of property, the same may be enforced by a writ reciting such judgment, or the material parts thereof,, and directing the proper officer to execute the judgment by making the sale and applying the proceeds in conformity therewith.” Under the provisions of that section, the writ, should contain the recitals required by its provisions, and should also direct the proper officer to execute the judgment.. The writ under consideration contains the proper recitals, but fails, outside of the recitals, to command the officer to sell the property. Is it void because of that defect ? The recitals contained in the writ were copied from the decree, and direct the-sheriff to proceed, and sell the premises described in said decree, at public auction, in the manner prescribed by law, according to the course and practice of that court, and after the time allowed for redemption had expired, to execute a deed 221 ■ to the purchaser at such sale, and also direct the manner of the •disbursement of the receipts from such sale. The recitals in ■said writ, which are in the words of the decree, direct the sheriff to do all that a writ issued in the most formal manner could have directed him to do. The process, though erroneous, was mot void. It was amendable. (Newark v. Chapman, 53 Cal. 557.) No injury is alleged or shown arising from the defect in said order of sale. The motion to quash and set aside is based on merely technical grounds. No showing was made on the hearing of said motions that the land sold under said order of sale did not bring an adequate price, or that anyone refused to bid at said sale because of the defect in the writ. Under the facts of this case, the order of the court denying the motion to quash and set aside, as well as the order granting the motion to amend said writ, must be sustained; and it is so ordered. Huston and Quarles, JJ., concur.