Wilson v. Garrick

Hall, Justice. There is not a single error specifically set forth, either in the motion for a new trial, or in the bill of exceptions. The objections to the admission of testimony are the most vague and general, and should not have been noticed by the superior court. The entire charge of the court upon a particular question is claimed to be erroneous, without specifying in what the error consists, and while, under §4351 of the Code, we should, perhaps, refuse to consider these general assignments, yet, as they have been argued, we will pass upon them. 1. There was no error in holding that the defendants were Iona fide purchasers of the mule in question, notwithstanding the notification to them that it was being sold illegally, and that the constable was selling without authority of law, and that whoever bought it would get with it “ a first-class lawsuit.” This was mere matter of opinion, unaccompanied by any reasons or grounds for such an opinion. The opinion was erroneous, likewise, as will be presently seen. 2. The mule had been levied on and claimed, but not replevied, and was in the hands of the levying officer. To save expense of keeping and prevent loss by deterioration' of value or by death, the justice of the peace, to whose court the execution was returnable ordered it sold, and the proceeds of the sale held up to abide the result of the claim case. It is insisted here that because the order directing the sale did not fully recite the facts authorizing the sale, and that defendant had the requisite notice of the same, that it was void. This was an order from a justice’s court, in which no great strictness or particularity of pleading is looked for or required. Besides, the statute does not require the facts to be set out in the order; it [664] simply declares the duty of the justice, upon certain fuels being made plainly to appear to him, to order the sale. Code, §3648. The omission in the recital of any one of them would amount only to an irregularity, at most, and would not affect the iitle of purchasers at the sale, under the order, as were the defendants in this case. It would be going a great way to presume that no notice was given to the defendant in the fi. fa. of the intention to apply for the order; the presumption, on the contrary, is that the magistrate did his duty by requiring proof of the notice, and this presumption is fortified by the fact that no effort was made to arrest the execution of the order because of the failure to give the notice required by the act. It is admitted that the claimant had the right to replevy the property, and if she failed or refused to do so, then the plaintiff in execution might replevy it; and if he neglected or refused so to do, then the claimant might apply to the ordinary for an order to sell it. Act of 1870 ; Code, §§3734, 3735. But this is a case where none of these conditions were complied with; both claimant and plaintiff in execution failed or were unable to replevy, and the claimant does not show that she made any application to the ordinary. The case was not covered by this legislation, but by that of 1873 and 1880, embodied in §3648 of the Code, under which the Order was taken. The defendants having purchased under this order, got a good title to the mule. The charges and rulings of the court were in accordance with these views, and appear to us to have been unobjectionable. Under these instructions and' the evidence in the case, the jury could have, re turned no other verdict than they did. Judgment affirmed.