Flynn v. Kalamazoo Circuit Judge

Montgomery, J. This is an application for mandamus [24] to review an order of respondent denying a motion made at the circuit to set aside and vacate a sale of real estate. The return of the respondent shows that an execution levy was made upon the property in question, which was treated as the relator’s homestead, and, acting under the provisions of section 10369, 3 Comp. Laws, the officer caused an appraisement of the property to be made, which appraisement showed it to be worth $2,350; that, as appears by the return .of the officer, the property was advertised for sale, and sold to the highest bidder at the price of $2,300. The relator then appeared and moved to vacate the sale on various grounds. An effort was made, on the motion before the circuit judge, to contradict the sheriff’s return by showing by affidavit that the recitation of the proceedings and doings of the deputy sheriff was untrue. We think in this the relator has mistaken the practice. The sheriff’s return was filed before the decision of the circuit judge, and no effort was made to require an amended return, and no amendment to the return was made or asked. We think the proper practice would have been to move to amend the return. While the return stands, it must be deemed conclusive upon the parties. The relator also contends that the appraisement was invalid for the reason that one of the appraisers was past 60 years of age; the statute requiring that the appraisal shall be made by six persons qualified to act as jurors. The age of this appraiser was not a disqualification. People v. Pawn, 90 Mich. 377 (51 N. W. 522). It is further claimed that the proceeding was irregular because the money realized upon the sale was not paid into court, so that the $1,500, which sum relator was entitled to as exemption, could be withdrawn by him. The failure of the sheriff to comply with the law in this regard did not avoid the sale, but relator’s remedy was a proceeding by citation to the sheriff, or an action against him. It is contended here that the proceedings show that the execution was not delivered to the sheriff until a day sub [25] sequent to the levy. The circuit judge returns that this point was not argued in the court below, and was not passed upon by him. Had the question been presented, it is possible that an amended return might have corrected the apparent discrepancy. As the order below was without prejudice, we think, before we are called upon to act in this matter, the relator should bring the matter to the attention of the circuit judge by a new motion, so that, if the error is one of fact, it may be corrected by an amended return. The writ of mandamus will be refused. The other Justices concurred.