Stout v. Brown

Per Curiam. The facts of this case are as follows: W. W. Brown brought suit against J. P. Sewell andC. R. Stout, and attached certain lots, also 48,000 feet of lumber. Upon a. trial against Stout for the sum of $1,401.71, the attachment was sustained, and the property attached ordered to be sold. After-wards the sheriff sold the property attached, and reported thé sale to the circuit court. The apppellant, Stout, filed his exceptions to the sale, and asked that it be set aside and a new sale ordered. Among other objections to the sale not necessary to notice, the appellant asked that it be set aside because the court, in its order of sale, failed to fix the time, place and terms of sale, and failed to specify the notice that should be given of the sale; second, that no notice of the sale of the lumber was given by publication in a newspaper as required by statute, and that for this reason the lumber sold for an inadequate price. Upon a hearing the exceptions were overruled, and the sale confirmed, and the case brought here by appeal. A section of our statute regulating the sales of attached property is as follows: “The sales shall be public upon such notice and at such place as the court may direct. When credits are given, bonds with security shall be required; and the credit shall not be longer than three months for personal property, and not less than three nor more than twelve months for real property, or on installments equivalent to not more than twelve months credit on the whole; and upon real property a lien shall be retained. The sales shall be subject to the confirmation of the court.” Sand. & H. Dig., § 366. This statute clearly requires that, in ordering a sale of attached property, the court should fix the time, place, and terms of “sale, and specify the notice upon which the sale was made. It is important that this requirement of the statute should be followed, for, as was said by the Supreme Court of Illinois, it operates “to assure the purchaser that his bid will be received if there is no departure from the requirements of the decree in conducting the sale, and thereby tends to increase the price of the property sold.” Sowards v. Pritchett, 37 Ill. 518; Harlan v. Murrell, 3 Dana (Ky.), 181. But the judgment of the court in this case condemning the property to be sold did not fix the time, place, or terms of sale, or specify upon what notice the sale should be made, and therefore did not follow the statutory requirement. In addition to this, our statute (Sand. & H. Dig., § 4684) requires that the advertisement of sales of property made-under orders of the circuit court be published in some newspaper, but no such publication was made of the sale of lumber in this case. The 48,000 feet of lumber sold brought $285.75. The appellant Stout testified that this sum was far below its actual value, and that the lumber was sficrifieed for want of bidders, but there was also evidence to the contrary. While the irregularities above noticed would not affect the validity of the sale in a collateral proceeding, yet this is a direct attack by appeal from the order confirming the sale. In view of the fact that it is doubtful whether the lumber brought a fair price, and as there were irregularities in the sale that might have affected the price for which it sold; we are of the opinion that the sale of the lumber should be set aside, and a resale ordered, if it be still within the jurisdiction of the court. As to the sale of the town, lots, the return of the sheriff shows that they were duly advertised by publication, in accordance with the the statute. The court had jurisdiction to order and confirm the sale. As there is nothing in the evidence- to show, nor is there - any contention on part of appellant, that the lots sold for less than a fair price, or that the price was in any way affected by the failure of the court to direct the terms of sale, we conclude that this failure did not injuriously affect the rights of appellant, and was, as to the lots, harmless error. The confirmation of the sale did not affect the right of' appellant to redeem within the statutory period, but that time has now expired. We have considered, but deem it unnecessary to discuss, the numerous other points raised by apellant. The judgment of confirmation is reversed as to the sale of the lumber, and in other respects affirmed.