Shultz v. Smith

The opinion of the court was delivered by Valentine, J.: The only question presented for our consideration in this case is, whether the court below erred in setting aside a certain sheriff sale. Indeed, about the only question is, whether a sheriff can legally and properly sell real estate on execution after the return-day of the execution, añd more than sixty days after its date and after it was issued. The execution in this case was issued and dated -November 24th 1874, and made returnable in sixty days, and the sale was made on January 27th 1875. Section 469 of the civil code provides that, “The sheriff or other officer, to whom any writ of execution shall be directed, shall return such writ to the court to which the same is returnable, within sixty days from the date thereof.” (Gen. Stat. 720.) And §472 of the same code provides among other things that, “ If any sheriff or other officer * * * shall neglect to return any writ of execution to the proper court, on or before the return-day thereof, * * such sheriff or other officer shall, on motion in court, and two days’ notice thereof, in writing, be amerced,” etc. (Gen. Stat. 721,722.) And all the authorities upon the subject seem to indicate that no valid act can be done by an officer under an execution after the return-day thereof, except to return the writ. Vail v. Lewis, 4 Johns. 450; Haggarty v. Wilber, 16 Johns. 287; Devoe v. Elliott, 2 Caines, [308] 243; Barnard v. Stevens, 2 Aikins, 429; Matthews v. Warne, 11 N. J. L. (6 Halstead) 29; The State v. Kennedy, 18 N. J. L. (3 Harrison) 22; Crews v. Garland, 2 Munford (Va.) 491. We think the sheriff had no authority to sell said property at the time he sold it, and therefore that the sale was at least voidable, if not void. The property probably did not bring as fair a price as it would have brought if everything had been regular and valid. The judgment-debtor, the defendant in error in this court, whose property was sold, attacked said sale in a direct manner, and at his earliest opportunity, by moving the court to have the sale set aside, and therefore if the sale was only voidable we think he had a' right to have it set aside. The order of the district court will be affirmed. Brewer, J., concurring.