By the Court,
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
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
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.