Morse v. Circuit Judge

To set aside order vacating judgment and execution sale. Granted July 1, 1891, with costs as against White. [738] A judgment was recovered by B. against one White in Justice Court in 1879. In 1885 the judgment was assigned to relator, who “as assignee and owner of the judgment rendered,” etc., filed with the justice an affidavit, took a transcript, filed same in the Circuit Court; a writ of execution issued, and a levy was made. In December, 1885, relator filed a bill in aid of execution against W. and wife, and II. ~W.., his son, alleging the judgment, the assignment, the procuring of the transcript, the filing of same with the affidavit therefor, in the Circuit, etc., and that W. and wife had conveyed the property levied upon to his son, to defraud complainant, and praying that the deed might be declared fraudulent and set aside, and the premises might be sold to satisfy said execution. Defendants appeared and demurred, specially alleging that it did not appear that any affidavit was ever made by any party legally entitled to make the same, upon which to base the issuing and filing in the Circuit of the transcript of the judgment. The demurrer was overruled, and afterwards complainant had a decree in accordance with the prayer of the bill. The premises were sold and complainant become the purchaser. Subsequently relator brought ejectment, and recovered possession. W. after-wards moved for a statutory new trial, which was granted. W. then moved to set aside the judgment and sale, on the ground that no sufficient affidavit was ever made or filed with the justice to authorize the issue of the transcript. The circuit judge granted the motion. Relator contended that the motion to vacate was a collateral attack; that the laches in making the motion had not been excused; that after final decree in the chancery cause, and judgment in the ejectment suit, defendant was not entitled to relief by way of motion and that the decree in the chancery was conclusive. Citing Tusca vs. O’Brien, 68 N. Y., 446; Beam vs. Macomber, 35 M., 455; Pray vs. Hegeman, 98 N. Y., 351; Aurora City vs. West, 7 Wall., 82; Beloit vs. Morgan, 7 Wall., 619; Cooper vs. Reynolds, 10 Wall., 308; Cornett vs. Williams, 20 Wall., 226; Hazen vs. Reed, 30 M., 331; Moore vs. Martin, 38 Cal., 428; Hooker vs. Yale, 56 Miss., 197.