Johnson v. Eldred

By the Court,

Cole, J.

We consider it a matter of serious doubt, whether the commissioner, Bull, had any authority to stay the proceedings on the execution at the time he made the order dated June 1, 1861. The statute authorizes the circuit judges to appoint, in each of the organized counties in their respective circuits, two court commissioners, who shall hold their office for two years from the time of their appointment, unless removed by the judge. Chap. 13, sec. 94, R. S. It appears from the case that Mr. Bull was appointed by an order of court, entered May 24, 1859 ; consequently his authority to act under that appointment had expired. It is not pretended that there had been any re-appointment, and we therefore cannot see how he could make a valid legal order staying proceedings. It is claimed, that although the commissioner’s term of office had expired, yet he could still hold over by virtue of section 160, chap. 13, until his successor was appointed. We are satisfied, however, that this provision of the statute cannot, by any fair construction, be held to apply to court commissioners. For they cannot properly be said to have any successors in office, any more than a notary public. This section undoubtedly refers to the other county officers mentioned in the chapter, who do really have successors, and who hold over until their successors are elected and qualified, in order to avoid the great public inconvenience which might result from a vacancy in the office. These reasons of public policy do not apply to court commissioners, or if they do, it is impossible to hold that court commissioners come within the intent and language of the law. So as a matter of strict statutory construction, we feel compelled to say that the commissioner had no power to stay the sale on the execution at the time he made the order. But notwithstanding this, we think under the peculiar circumstances of this case, the sale on the execution should be set aside. It does not admit of doubt that the appellant endeavored in good faith to stay the sale. He took all the steps which he supposed were necessary for tbe purpose, bj applying to an officer wbo, be bad every reason to conclude, might grant him an order staying proceedings. This order be seasonably served upon tbe proper parties. Still tbe sheriff disregarded tbe order and proceeded with tbe sale. He doubtless was as ignorant as any one that tbe commissioner’s term of office bad just expired. All parties were unquestionably laboring under a mistake as to tbe commissioner’s power to act in tbe premises. At all events, it is very apparent that tbe commissioner and appellant were mistaken upon this point. Now tbe fact that the appellant was acting under this very natural mistake in regard to tbe commissioner’s power to stay tbe proceedings, is a circumstance proper to be considered, and one which furnishes an equitable ground for setting aside' tbe sale. He bad doñe every thing which was deemed necessary to prevent tbe sale, but tbe commissioner’s term of office bad just expired. Tbe mistake was one which tbe most vigilant and diligent person might have fallen into, for we suppose it rarely happens that one examines tbe date of tbe appointment of a court commissioner when be applies for an order. If tbe court commissioner assumes to act, it is taken for granted that be has legal authority to do so. Upon this ground, we are of tbe opinion that tbe sale on tbe execution should be set aside.

There is still another circumstance which greatly strengthens tbe merits of tbe application to set aside this sale, and it is this. The judgment of foreclosure upon which tbe execution issued, bad been practically reversed before tbe sale was made. It will be remembered that there were two appeals in this cause. One was from an order of tbe circuit court refusing to set aside a default and permit tbe appellant to come in and defend tbe suit. This order was held to be erroneous, and was reversed. There was.likewise an appeal from tbe judgment itself. As tbe record stood, we were compelled to affirm tbe judgment, but we did so subject to tbe power of the circuit court to set tbe same aside according to tbe direction in tbe former appeal, and expressly saving to tbe appellant all bis rights consequent upon tbe reversal of tbe order denying him the right to make defense to tbe action. So tbat while there wag a technical affirmance, there was substantially and really a reversal of the judgment, when we consider the conditions upon which it was affirmed. The remittitur on that appeal was filed in the office of the clerk of the circuit court of Crawford county long before the sale was made under the execution. The parties must have seen upon what terms and conditions the judgment of foreclosure had been affirmed, and it is not a little strange that the respondent proceeded to make sale under it. The practice is what might be termed sharp and enterprising, quite too much so to receive the strong approval of a court of equity. And it is these peculiar circumstances which, in our opinion, entitle the appellant to have the sale upon the execution set aside. But it is said, if the sale is set aside, that the appellant is not entitled to a restitution of the bank stock sold, but must be content to receive the amount realized at the sale. This might be so had not the purchaser bid at the sale with full notice. But it seems he did. King swears that he gave notice at the sale to all persons, that the sheriff had no authority to make any sale in the action or upon the execution. We do not understand that courts go so far as to protect a purchaser who bids with' full notice of the ir regularity of the sale. That Hall had such notice there is no reason to doubt. He therefore cannot retain the bank stock as against the appellant.

The order refusing to set aside the execution and the sale made under it, must be reversed, and the cause remanded for further proceedings according to law.