Bank of the State v. Bray

Wagner, Judge, delivered the opinion of the court. Appellant obtained judgment against Stone and others on [195] a bill of exchange, in the Probate and Common Pleas Court of Springfield, at the May term of said court, 1863, Execution issued on said judgment, returnable to the next succeeding November term, directed to the sheriff of Christian county. The sheriff levied on the property of Stone on the 4th day of February, 1864, and sold the same on the 8th day of March thereafter, when the Bank and one Davidson became the purchasers. At the May term succeeding, Stone filed his motion to set aside the sale made by virtue of the execution, and to quash the same, and also to set aside the judgment as to him for the following reasons : 1. The court had no jurisdiction of the person of the defendant, he not having been summoned ; 2. There was no legal summons issued in said case; 3. Defendant was not served with process. And he further asked that the said sale be set aside for the following additional reasons : 1. Because it was made after»the return day of the execution ; 2. That the .execution was functus off do. The court sustained the motion, quashed the execution, and set aside the sale and judgment; to which action of the court appellant excepted, and appealed to this court. It appears from the record that the fieri facias was made returnable at the November term of the court, 1863, and that no levy was made under and by virtue of the same until February, 1864. The writ was then functus officio; it had spent its force, and all proceedings under it were null and void. The'doctrine of caveat emptor applies in sales of this description, and the purchaser will be required at his peril to see that he purchases under an execution sufficient to give him a good title. The act of 1863, (Session Acts, p. 20, § 2,) and the 54th section of the “Act regulating executions” (R. C. 1855, p. 748), have reference only to cases where levies have been made on valid subsisting executions; but as here the levy was not made while the execution was in force, they cannot be invoked to support and uphold the sale. We see no error committed in setting aside the sale; but [196] upon what ground the court went further and set aside the judgment, we are wholly unable to perceive. The sheriff’s return, as appears of record, shows that Stone was duly served with process, and for aught that appears it seems that the court took his simple statement to the contrary, and allowed it to contradict and overturn the verity of the record. It is, indeed, surprising strange how a court, in the face of the record, without any allegation or evidence impeaching the return of the officer, could set aside the judgment, as was done in the court below. We do not wish to be understood as intimating, however, that the return can be invalidated, or taken advantage of, even if false, in a proceeding of this character. For the error of the court in setting aside the judgment, the judgment in this case is reversed and the cause remanded. The other judges concur.