Sabin v. Austin

By the Court, Cole, J. The ground of relief relied on in the first cause of action is, that the paper purporting to be an execution, and under which the sale was made, was simply a void writ and therefore conferred upon the sheriff no power to levy upon and sell real estate. The principal objection taken to the execution is, that it fails to state when and where the judgment was docketed as required by sec. 8, chap. 134, R. S. This was undoubtedly a defect in the execution, as will be manifest by a reference to the language of the section just referred to; but the question is, was the defect such as to render the writ absolutely void or only voidable ? If it was a void process, then of course it conferred no authority whatever on the sheriff to proceed under it, and no title could be acquired [423] at tbe sale. But if tbe defect did not render tbe execution void, and was an error or defect which tbe court might have cured by amendment, then a different rule applies. Woodcock v. Bennett, 1 Cowen, 711. We are clearly of tbe opinion that tbe error or defect in this execution was one which tbe court might have supplied by amendment, and therefore that the acts done under it are not yoid, nor should a court of equity interfere and set aside the sale and annul the certificates upon that ground. This court has held that a sale made under an execution which was not sealed was not void, but that the purchaser acquired a valid title at the execution sale. Corwith v. State Bank of Illinois, 18 Wis., 560; see also Mariner v. Coon, 16 Wis., 465. The omission of the seal of the court from which the execution issues, would seem to be quite as serious a defect as the failure to state the time and place of docketing the judgment. And since the court would have been authorized to amend the execution in this particular, even on a direct application to set the same aside, we cannot hold the matters stated in the first cause of action sufficient to entitle the respondent to the relief he seeks. It is very manifest that the matters stated in the second cause of action, when considered by themselves, are clearly insufficient and can only' be sustained by reference to the facts stated in the first cause. Each cause of action, considered by itself, is bad in substance, and the second cause of action must be helped out by treating it as though all the material allegations of the first cause of action were incorporated in that count. Thisds bad pleading, within the decisions of this court, where the rule is laid down that a count or defense defective in any material averment cannot be aided by reference to another count or defense. Curtis v. Moore, 15 Wis., 134; Catlin v. Pedrick, 17 id., 88. Had the material facts set forth in the first count been properly incorporated in the second count, perhaps the party would have been entitled to relief so far as the homestead is concerned. That point is not in the case on this de [424] murrer, and therefore we do not wish to be understood as deciding it. The order of the circuit court overruling the demurrer is reversed, and the cause remanded for further proceedings according to law.