Grede v. Dannenfelser

Cole, J. It is very clear that the court had no power to disturb or vacate the judgment when the application therefor was made. The judgment was entered on the 4th day of December, 1871, and the order to show cause why it should not be vacated and the costs therein inserted stricken out, was obtained about four and a half years thereafter. The ground of the application for vacating the judgment was want of notice of the entry of the same, and that there was no proper notice of taxation of costs. It is not very satisfactorily shown to my mind that proper notice of taxation of costs was not given. The objection to the sufficiency of the notice which appears in the record, is a mere technicality at most. But it is sufficient'to say that, under the repeated decisions of this court, the judgment could not be vacated after such a lapse of time for any mere irregularity. Many cases to this point are cited on the brief of respondent’s counsel, which abundantly establish the proposition that the court had lost all power to disturb the judgment. But whether the affidavits do not present a case for setting aside the sale under the execution, is a different question. The parties to this litigation reside in Milwaukee county, and it appears that real estate in Waukesha county was sold under the execution, August 30, 1873. In March, 1876, the sheriff executed a deed to the purchaser. Various grounds are relied on for setting aside the sale, which we do not deem it necessary to notice in detail. The judgment debtor states in his affidavit, that he had no knowledge whatever of the entry of the judgment, the issuing of the execution, the levy upon and sale of the land, until the 2d of June, 1876, when he was [84] informed by bis tenant tbat the land had been sold and a deed given to the purchaser. He states that the land sold was worth about $1,100; the purchaser bid the land off for the amount due upon the execution, costs, etc., which amounted to $186. It is admitted that the sheriff omitted to file in the office of the register of deeds of Waukesha county a duplicate certificate of sale as required by section 52, ch. 134, E. S.; in fact, no such certificate was filed before the sheriff’s deed was executed; and the question is, Was the failure of the sheriff to file the duplicate certificate of sale in the register’s office such an irregularity, under the circumstances, as will warrant the court in setting aside the sale upon terms? It seems to us that it is. Applications to set aside sales on execution are doubtless largely addressed to the discretion of the court; but that discretion should be so exercised as to serve the ends of justice and protect the rights of parties. And, for the accomplishment of these objects, weight is often given to technical irregularities in the proceedings, as was done in Allen v. Clark, 36 Wis., 101. There this court affirmed an order setting aside a sale because the execution was not subscribed by the party issuing it, nor by his attorney; deeming it a proper case, upon the facts, for giving full weight to technical defects and irregularities. In the case at bar, the statute required that a duplicate certificate of sale should he filed in the register’s office of the county; and this was important, as well to give the debtor notice that his land had been sold, as to inform him when the time for redemption expired. It seems to us the court below did not attach sufficient importance to that fact, especially when it appeared that the debtor was entirely ignorant that a levy and sale had been made, and when the land was sold for such a very inadequate price. The fact that a sheriff’s deed had been executed to the purchaser, was not a controlling circumstance in the way of setting aside the sale. “ A purchaser at a sheriff’s sale, although a stranger to the judgment or decree, by his purchase submits himself to [85] tbe jurisdiction of tbe court in respect to tbe sale and purchase (Cazet v. Subbell, 36 N. Y., 677; May v. May, 11 Paige, 201).” This is the language of the court in Hale v. Clauson, 60 N. Y., 339-341, which is a strong case in favor of setting aside the sale. See also Corwith v. State Bank of Illinois, 18 Wis., 560. In tbis case we tbink tbe sale should be set aside upon tbe appellant’s paying tbe amount for wbicb tbe land was sold, together with ten per cent, interest. On complying with these terms, tbe appellant is entitled to have tbe sale set aside. It follows from these views that so much of tbe order of tbe circuit court as refused to set aside tbe sale must be reversed, and tbe rest of tbe order affirmed. By the Cowrt. — So ordered.