Davis v. Magnes

Mr. Justice McBride delivered the opinion of the court. 1. We think the order of confirmation of the sheriff’s sale by the court was conclusive of its regularity, and that it cannot now be impeached. It was made without objection years ago when all parties were present in court. The court thus had jurisdiction of the parties and the subject-matter, and, if its action was erroneous, an appeal to this court from the order was the proper and only remedy to correct it. It is now claimed that under the circumstances the sale of the lands in question was void, but the court having full power to adjudicate that question, at the time the order of confirmation was made, decided otherwise. If the order had been taken without the appearance of the execution defendant in court, a different question might have arisen. But here the defendant, with full knowledge of his rights, failed to assert them, and neither he nor his grantees ought now to be heard to question a judgment so taken: Mathews v. Eddy, 4 Or. 225; Dolph v. Barney, 5 Or. 191; Strong v. Barnhart, 6 Or. 93; McRae v. Daviner, 8 Or. 63. 2. An execution sale without proper notice is in any event a mere irregularity, and such sale cannot be attacked collaterally. Freeman, Executions, § 286, and cases there cited. The decree of the circuit court is affirmed. Affirmed.