State ex rel. Daubin v. Boyd

Burgess, J. —

This is a proceeding by motion, to set aside a judgment rendered for taxes, quash the execution, and to set aside the sheriff’s sale of the land made thereunder. Defendant Boyd, owner of the land, was a nonresident of the state, and was brought in by publication. No interlocutory judgment was rendered.

On the seventeenth day of September, 1891,- at the September term of the Barton circuit court for that year, judgment was rendered against Boyd, and a tax lien enforced against the land in question. On the twenty-third day of October, following, an execution was issued* on said judgment, and levied upon the land, and, after being advertised for sale, it was sold by the sheriff on the fourteenth day of November, 1891, during the sitting of the same term of the circuit court, at which sale Huggins became the purchaser of one forty acre tract of the land at the price of $115, and received a sheriff’s deed therefor, which was duly filed for record on the twentieth day of November, 1891.

The judgment was for the taxes for the year 1887, which had been paid by Boyd on the thirty-first day of December of that year, for which he had, and produced on the hearing of the motion, the collector’s receipt. *134The land, however, had been returned as delinquent by the collector for that year; but the delinquent list was never examined or corrected by the county court, nor did that court ever order said list to be certified or filed in the office of the clerk of the county court.

At the time the land was sold it was worth $600; the judgment against it was for $12.95. The execution was made returnable at the February term, 1892, and had not been returned at the time of filing the motion to set aside the sale. Huggins, so far as the record discloses, had no knowledge that the taxes had been paid, or of any irregularities, if any there were, in regard to the taxes, judgment or sale of the land.

On a hearing of the motion it was sustained as to the sale, and it was ordered and adjudged that the sheriff pay over to Huggins the sum of $53.95 remaining in his hands, and that the defendant Boyd pay to Huggins the further sum of $72.55, and that the costs be adjudged against said defendant Boyd. From the judgment, Huggins alone appealed.

The grounds upon which the judgment and sheriff’s sale were sought to be set aside, and the execution quashed, were, want of notice by defendant Boyd of the pendency of the suit or the proceedings thereunder, inadequacy of the price for which the land was sold, payment of the taxes and the failure of the county court of Barton county to examine and correct the delinquent list for 1887 before suit was brought for the taxes claimed to be delinquent.

As the sheriff’s sale seems to have been regular in every respect, and free from fraud, it is impossible to conjecture upon what ground it was set aside, unless it be that the court was of the opinion that the judgment under which the land was sold was void. But the judgment was not void. The court had jurisdiction of the subject-matter, and of the parties. Boyd had been *135constructively served -with, process by publication in a newspaper published in Barton county, as to which no objection was made, and, whatever of informalities may have existed in the proceedings in that case before the rendition of the final judgment, by way of irregularities, if any, it was not void, and no order was made setting it aside or quashing the execution because the judgment was irregular. Moreover, Boyd did not appeal, so that the only question before this court for judgment is the action of the court in setting aside the sale.

While it may be conceded that a court has complete control over its own writs and process, and may, at or before the return term of an execution, set aside a sale made thereunder, it must have some ground upon which to predicate its action, and in this case it has not been suggested in what manner the sheriff’s sale was irregular, or anything else that justified the court in setting it aside. Inadequacy of the price at which the land was sold was not of itself sufficient. Nor is it contended by counsel for Boyd that it was. The judgment is reversed.

All of this division concur.