State ex rel. Wilcox v. Scarborough

The opinion of the Court was delivered by Mr. Justice Gary. This is a petition for a writ of mandamus to compel the sheriff to accept the amount for which the petitioner bid off the land herein described, and to execute a deed of conveyance of the said land. The return of the sheriff to the rule to show cause, which was not traversed, sets forth the following statement of facts: “1. That having certain executions in his office, as sheriff of Darlington County, against J. J. Ward and C. S. McCullough, particularly two, the one entitled D. C. Milling, receiver, v. J. C. Willcox, J. J. Ward, and C. S. McCullough, and the other John Lunney v. J. J. Ward, C. C. McCullough, and A. C. Spain, he was directed by Messrs. Boyd & Brown, attorneys controlling the execution, to advertise the property described in the seventh paragraph of the petition, in the above stated case, with other property, for sale at public auction for cash on salesday in December, 1898, and did so advertise the said property and sold the same, except a portion thereof which was withdrawn from sale on the said salesday; and the said property described in the said petition was knocked down to the petitioner, P. A. Willcox, for the sum of $100, he being, at that price, the highest bidder. That on the same day either the said P. A. Willcox, or some one for him, said to deponent that the bid would be complied with on the next day, and he replied that that would be all right. He denies — 50 — that he said to the said P. A. Willcox, or any one representing him, ‘that he could comply later,’ other than by his reply above stated to t'he promise to pay him on the next day. He denies that the said P. A. Willcox, or any one for him, said to him that W. F. Dargan, Esq., would attend to' the matter and pay the said bid whenever he, the deponent, might desire it, or that he ever assented to such arrangement. None of the bids on the property sold as aforesaid under the execution against Ward and McCullough were complied with at once, and he did not readvertise the property for sale on the next salesday for the reason that the plaintiff’s attorneys directed him to await their order. That he heard nothing more from the said P. A. Willcox as to his bid, and the only inquiry about it came from Messrs. Boyd & Brown, who on several occasions made inquiry as to whether the bid had been complied with, to which he replied that it had not. That some days before the time expired in which to advertise the land for sale for salesday in February, 1899, Messrs. Boyd & Brown told him of three parties who were ready to comply with their bids, and directed him to call on them for compliance, and upon their doing so, to readvertise for sale in February all other property belonging to the first advertisement which had been‘either withdrawn on December salesday or had not been complied with. That of the three parties named, two of them complied at once, and the third arranged with Messrs. Boyd & Brown for further time. That deponent then readvertised the property as directed for sales-day in February, 1899, and of which property the interest described in the petition in this case was a parcel. That when plaintiff’s attorney directed him to so readvertise, they stated that they regarded the bid made by P. A. Willcox as forfeited by non-compliance. That the sales aforesaid advertised for December, 1898, were advertised under the execution of D. C. Milling, receiver, v. J. C. Willcox, J. J. Ward, and C. S. McCullough, and the sales advertised for salesday in February, 1899, were by direction of plaintiff’s attorneys advertised under the execution entitled John Lunney v. J. J. — 51 — Ward and A. C. Spain. That on'the ' day of the month of February, an agent of P. A. Willcox- came to - the deponent’s office and made tender of the amount of his said bid, with interest and the cost of advertisement and the cost-of conveyance, and demanded a conveyance of the said property bid off as aforesaid by' him. . ’That deponent at once consulted plaintiff’s attorneys; as Was his duty, and they declined to assent to said compliance, saying'that they regarded the bid as having been forfeited. ■ Thereupon deponent refused to accept compliance with the bid and proceeded with the said advertisement until stopped by the order served upon him * * To this return was attached the affidavit of Mr. R. W. Boyd. The only allegations which it is deemed necessary to set forth are the following: “That before the said sale took place, deponent, who had special charge of the matter, directed a calculation to be made of the amount due on the said two executions controlled by his firm, and that- by an accident, a mistake was made leading to- a result of over $400 less than the amount actually due on the executions. That owing to this mistake, several' parcels of property were permitted by his firm to- be bid off at smaller prices than would have been permitted had the real amount of the debt been known; and supposing that the bids had covered the debt, several parcels of property belonging to the said C. S. McCullough were withdrawn from sale. * * * That after the time in which property could have been advertised for sale on salesday in January, 1899, the said error'in calculation was brought to deponent’s notice, and feeling satisfied that the interest that had been bid off as aforesaid by Mr. Willcox could be made upon resale to bring considerably more than the amount of his bid, he thought that it would be his duty to take advantage of his non-compliance within a reasonable time of the terms of the sale, and declare the bid forfeited. * * * Deponent submits that John Lunney; the execution creditor/and C. S. McCullough,- the executiofi debtor, have interests in the matter that should not be disregarded, and — 52 — are necessary parties to this proceeding. Deponent further adds, what was admitted at its proper place, that he was not aware until he read the petition, that Mr. Willcox had requested Mr. W. F. Dargan or any one else to act for him in the matter of the bid. The advertisement for the sale on salesday in February was, by deponent’s express direction, not at the risk of the former purchaser.” The fourth paragraph of the petition contains the following allegations: “IV. That immediately after the said sale, this relator was able and' willing to comply with said bid, and he so informed the said sheriff, but the said sheriff, being very much engaged with his official duties, informed this relator that he could comply later. Thereupon this relator informed the said sheriff that W. F. Dargan, Esq., would represent this relator in said matter and would, on his behalf, pay to the said sheriff the amount of the bid whenever he desired it; to ail of which the said sheriff assented, and the said sheriff, nor any one in his behalf, has never demanded' a compliance with said bid.” When the affidavit of Mr. W. F. Dargan was offered in evidence, to the effect that the allegations of the said paragraph were true, the appellant objected to the reading of the affidavit in reply on the sole ground that no notice or copy of the same had been'served on him. The objection was overruled. 1 The sheriff appealed from the order that a peremptory writ of mandamus be issued against him in accordance with the prayer of the petition on numerous exceptions, some of which raise questions that were not presented upon the trial in the Circuit Court, while others raise the question that his Honor, the Circuit Judge, erred in certain findings of fact. There are also exceptions which complain of certain rulings of the Circuit Judge which are not set out in the record. Those exceptions raising questions that were not presented for the consideration of the Circuit Judge and those based upon rulings not contained in the record cannot be considered by this Court, nor can it review the findings of fact, except for the purpose of — 53 — 2 determining whether there was an abuse of discretion on the part of the Circuit Judge. The exceptions do not impute to the Circuit Judge an abuse of his discretion, and that question is, therefore,' not before the Court, but in justice to him we may say that not only was there no abuse of his discretion, but his conclusion is fully sustained by the testimony. . The only questions presented by the exceptions which this Court can consider are: ist. Was there error in refusing to malee the execution creditor and debtor parties to this proceeding? and 2d. Was there error in permitting the petitioner to introduce in evidence certain affidavits in reply, on the ground that no notice or copies of the same had been served on the appellant? 3 His Honor, the Circuit Judge, filed an order that the mandamus be suspended upon compliance with certain conditions therein mentioned. The sheriff has also appealed from that order, but as he has complied with the conditions, he thereby waived the right to insist upon the exception to said order. 4 We will proceed to consider the first of the questions raised by the exceptions, to wit: Was there error in refusing to make the execution creditor and debtor parties to this proceeding? Even conceding that they would be proper parties, there is nothing in the record showing that they are necessary parties. The facts in the case are practically undisputed, and as hereinbefore stated, the conclusion of the Circuit Judge is fully sustained by the testimony. The only result that would follow from making them parties would be a delay in according to the petitioner his rights in the premises. 5 We will next consider the second question, to wit: Was there error in permitting the petitioner to' introduce in evidence certain affidavits in reply, on the ground that - no notice or copies of the same had been served on the defendant. The introduction of the affidavits in reply was not the proper mode of traversing the return, and it — 54 — was error to allow them to be introduced either with or without notice. These affidavits, however, either stated facts that were immaterial or that were not in dispute, and the appellant was not prejudiced by their introduction in evidence. As the error was harmless, the exceptions raising this question are also overruled. It is the judgment of this Court, that the order of the Circuit Court be affirmed.