Camp v. Shuman & Co.

Per Curiam. The plaintiff sought to enjoin a constable’s sale of .personal property, advertised for November 18, 1924, on the grounds, (1) that that was not the legal sale day, and (2) that she had tendered an affidavit of illegality setting up payment. The application for injunction was heard on November 18, 1924, and denied. The affidavit of illegality offered by the plaintiff alleges that she had paid $40 in money, and since then she had paid in book's the entii'e consideration of the claim, valued at $60 by plaintiff; that these payments aggregated $100; that the excess was due her; and she pleaded said excess against the plaintiff, and prayed judgment accordingly. Held: 1. To reverse the judgment refusing the injunction on the first ground would be futile; the day of the sale sought to be enjoined having long since passed, and the judgment refusing the injunction having been rendered on the day the sale was to have taken place. If the sale took place on the day on which the sale was advertised to take place, it is' now too late to prevent such sale. If the sale did not take place, the presumption is that the levying officer will advertise the sale upon a lawful sale day the next time.' For this reason we do not reverse the judgment on this ground. 2. The court did not err in refusing an injunction on the ground that the plaintiff had tendered an affidavit of illegality, because under the undisputed evidence it appears that the payments claimed by the plaintiff were made prior to the judgment and by a sale of certain property under the execution, the proceeds of which had been applied to the payment of the costs due on the execution. Judgment affirmed. All the Justices concur, except Russell, C. J., dissenting.