#### Corwith vs. The State Bank of Illinois.

Where a motion was denied on the ground that copies of the papers on which it was founded had not been served as required by a rule of court, the denial is not a *bar*to anew motion for the same purpose, regularly made, although formal leave to renew it was not obtained,

upon a reversal of a judgment under which land has been sold to the judgment plaintiff, and is still held by him the sale will be set aside on motion of the judgment debtor.

APPEAL from tbe Circuit Court for *La Fayette.*County.

Tbe *State Bank of Illinois*moved tbe circuit court, at tbe October term, 1858, to set aside certain sales of real estate made to Gorwith, upon executions issued on a judgment in that court in bis favor against tbe *Bank,*upon tbe ground that tbe judgment bad, after tbe sales were made, been reversed by tbe supreme court; and upon tbe ground also, that tbe executions upon which tbe sales were made, were without tbe seal of tbe court, and were therefore void. Prior to this motion, tbe court, on motion of Gorwith, had ordered the clerk to amend tbe executions by attaching to them tbe proper seal, which was done. On tbe bearing, the court ordered that tbe sales should be set aside, upon tbe ground that at tbe time they were made, no seal was affixed to tbe executions. Prom this order *Gorwith*appealed to the supreme court, where, at tbe January term, 1860, that order of tbe circuit court was reversed, upon, tbe ground that a previous motion bad been made by tbe Bank, in tbe same court, to set aside tbe sales, and a previous order made by the court on that motion, setting tbe sales aside, bad been reversed in this court, on appeal, and tbe cause remanded, *without leave*to tbe party to renew tbe same motion. 11 Wis., 430. Tbe opinion of this court, reversing *290tbe order made on tbe first motion, is reported in 8th Wis., one ground of the refusal haying been, that no papers were served on the *Mr. Corwith*with the notice of the motion, as required by Bule II of the circuit court rules, but only a reference made in general terms to the records and papers on file in the suit, as the foundation of the motion. A rehearing was subsequently granted in the case reported in 11 W is., 430, and the order of the circuit court, sustaining the second motion to set aside the sales, was affirmed in the follow-

*May*15.

*J. H. Knowlton*and *J. A. Sleeper,*for the appellant.

*S. Crawford, A. D. Smith*and *Emmons & Van Dylce,*for the respondent

*By the Court,*

DixoN, C. J.

The first motion was denied for irregularity in the moving papers. The defendant did not comply with the rules of the court, and for that reason the merits were not investigated. 8 Wis., 376. At the time of our former decision (11 Wis., 430), that case was unreported, and the manuscript opinion not within our reach. The present members of the court were, consequently, unaware of the ground upon which the decision was placed. We are now of opinion that the denial of the motion is not a bar to the present application. It is like a judgment of non-suit, or the abatement of an action for some error in bringing or conducting it, which have never been held to preclude the plaintiff from beginning anew. Through ignorance or inattention to the rules of practice, the motion was *abated*for defect in the form of the papers. There is some uncertainty in the authorities, but the more just and rational rule seems to be, that it should not be a bar to a subsequent motion regularly made, even though the party do not ask and obtain formal leave to renew it. *Dollfus v. Frosch,*5 Hill, 493 and note.

The sale was set aside as to the lands bid in by the plaintiff. The titles of strangers purchasing under the execution remain undisturbed. It is from this order the plaintiff appeals. The rule upon which his counsel rely, or rather, the reason of it, suggests its own exception, and that the plaintiff’s case *291is witbin it. The rule is, that where a judgment is reversed for error, the sale under the execution shall not be avoided; the reason, if it were, the vendee would lose his property and his money too, and therefore great inconvenience would follow, as no one would buy of the sheriff in such cases, and executions of judgments would not be done. 8 Coke, *Manning's Ca*se; *Woodcock v. Bennett,*1 Cow., 734-42. The exception necessarily implied is, if the plaintiff or creditor be the purchaser, the sale may be avoided. He has parted with no money, and has no property to lose. The reversal of his judgment is a judicial determination that he was not entitled to recover. No inconvenience will follow. It is unnecessary, to encourage bidders, that he should be protected The rule ceases with the reason. The statute gives the debt- or a right to redeem. It would be absurd and unjust beyond measure, to say that he can only regain his land by the payment of money which he does not owe. The wisdom of the law, which looks to the rights of all parties, leads to no such oppression. The power to set aside the sale under such circumstances, of necesssity resides with the court, and the order here was fully justified. This conclusion is sustained by the English authorities. See 3 Bac. Abr. Tit. “Execution,” Q, where, having given the rule, the exception is thus stated: “But if the plaintiff takes out an *elegit*on his judgment, and the sheriff upon this writ delivers a lease for years, of the defendant, to the value of £50, to the plaintiff, *per rationabihpretium etextentum,*to have as his own term, in full satisfaction of £50, part of the sum recovered, and afterwards the defendant reverses the judgment, he shall be restored to the same term and not to the value; for thohgh the sheriff might have sold the term on this writ, yet here *is no sale to a stranger,*but a delivery of the term to the party that recovered, by way of extent, without any sale, and therefore the owner shall be restored. And for this reason if goods were on this writ delivered to the party, *per rationabihpretium etextentum,*upon the reversal of the judgment he should be restored to the goods themselves.” The right of the debtor, whose lands are purchased by the creditor on execution under our statute, cannot be distinguished on principle from those of *292the debtor whose property is -under extent according to tbe English practice. In. *Goodyer vs. Junce,*Yelv., 179, the distinction between a sale by the sheriff to the party himself and such sale to a stranger, is expressly noted, and it is said the latter only will be protected. If the former be the purchaser, restitution will be awarded. And *Harrison vs. Doe,*2 Blackford, 1, is an authority fully in point. See also *Simons vs.*Catlin, 2 Caines’ R., 60.

We need not therefore inquire into the correctness of the order amending the execution. *For,*conceding the execution to have been regular, the sale must still have been set aside.

Order affirmed.