Estes v. Ivey

McCay, Judge.

1. We have no fault to find in this practice of Judge Johnson in cases like the present. Something of the sort would seem to be necessary for the intelligent administration of the law. There is a fund in the sheriff’s hands for distribution. It is hardly possible, if there be several claimants, to do justice between them in such a way as that the record shall show what has been done without requiring just such a statement to be made by each party as the judge required in this case. The jurisdiction is an equitable one, and we would be very slow to interfere with any practice which, without doing injustice, shall have the effect to reduce into order and method the inevitable confusion which must arise in such cases where the parties are permittéd to state by parol the nature and dignity of their claims, leaving the court to grope among the papers for the true points of the controversy.

2. As we said in the case of Walton vs. Jones, at this term,, we recognize that during the time the judgment of the court, in such cases, is in the breast of the judge, it may be opened by him at his discretion, yet to justify an interference by this court the refusal to interfere must be grossly unjust. Necessary rules of order require that a point once made and ruled upon shall continue settled, unless the court sees that injustice has been done. If a party may, as matter of right, ask and reask a rehearing, the public business cannot be done. Generally the rules of order are to be observed. The movant has a right to open.and conclude — all points must be insisted on at once. A decision once announced must be acquiesced in, etc., etc. But if the court see that the principles of justice require a deviation from these rules, he may even reopen his own action and rehear a case. But this is very largely in his discretion, and he will only be reversed here when injustice has been done, and the p^irty complaining be without fault. We can see no error in the refusal in this case. The court was occupied with other business, and the party failed to show what it was he had new in the case. If one be in default, as the complainant was here, and asks a review, he should take a proper .time to make his request, and he should make it in such a way as that the court can see at once what is the point. This was not done here. The request itself was out of order, as there was other matter before the court.

3. Previously to the Code, it was necessary to file a bill to get at the right of the defendant in' property situated as this was. His right was a purely equitable one. The land was the property of the vendor, and subject to levy and sale as his property. Taking this statute altogether, it is evident that the intent was to give the plaintiff in fi. fa. the right to do exactly what equity would have decreed, to-wit: to sell the land — the whole title — pay the vendor out of the proceeds all that was due him, and appropriate the balance to the judgment. To do this, we think the act must be complied with. If the levy be merely of the defendant’s interest, or on the laud as his property, the purchaser, if he gets anything, clearly ought only to get the defendant’s interest, and if so, the vendor lias no interest in the proceeds. He still holds the title, and he may proceed as though there had been no sale. If his (the vendor’s) title is sold, then, and then only, can he claim the proceeds.

4. Nothing was done here indicating that the whole interest was sold; no notice'was given, as the statute requires. Evidently there is a mistake in this section. The party to be notified ought, in common sense and common honesty, to be the holder of the notes. He is the party whose interests are to be affected. The holder of the bond generally gets notice by the levy. Here was no notice to any one. Nothing appears to show that the sale was of the whole title. We think, to justify a sale of the whole interest, as contemplated by this section (3586) of the Code, there should be reasonable notice, so that all parties, defendant and holder of the notes, shall know what is to be sold, and have due notice of what is about to be done. If there be no such notice, nothing is sold but the interest of the defendant, if that, and the purchaser gets nothing but the right to stand in the defendant’s shoes. The vendor has still his remedy. The land is still his. He may sue, file his deed, and sell.

Judgment affirmed.