Haynes v. Richardson

Bleckley, Justice. 1. An affidavit of illegality to a mortgage fi. fa. levied upon personalty, is not prepared for return into court until after the judge who passed the order of foreclosure has ordered the levying officer to postpone the sale, nor until bond with security has been given for the return of the property when called for. Code, §3976. Where the affidavit has been brought into court prematurely, and on that account is dismissed, the defendant either has or has not the right to apply for the omitted order with a view to having the affidavit reinstated. If he has the right, leave to apply is useless; and if has not the right, granting the leave will not confer the right, and the grant is harmless. In either case, such an addition to the order of dismissal is mere surplusage, and cannot benefit one' party or injure the other. 2. The description set out in the fi. fa. furnished no token or circumstance by which to identify the property, not even naming the person to whom it belonged or as whose property it was to be seized. The best action to take with all such extremes of vagueness and uncertainty, is to pronounce them bad at once, and let them do as little harm as possible. A fi. fa. so grossly defective should not be allowed to proceed; and the motion to quash being made by the defendant, and there being no proposition to amend, it was not error to grant the motion. Judgment affirmed.