#### Johnson vs. Eldred.

A court commissioner’s term expires at the end of the two years for which he is appointed. He does not belong to the class of officers who hold until successors are appointed.

A judgment went by default, and a motion to open the default was denied, and the defendant took separate appeals from the judgment and from the order refusing to open the default. The order was reversed and the judgment was affirmed subject to the power of the court below to set it aside, according to the direction given on the appeal from the order. After the record of reversal was filed in the court below, the sheriff was about to sell personal property under an execution upon the judgment, when the defendant obtained an order from a person who acted in the matter as court commissioner, but whose term of office had in fact expired a few days before, staying all proceedings by the plaintiff for sixteen days, until amotion could be made in court to set aside the execution. This order was served upon the plaintiff’s attorney and the sheriff before the hour of sale, and notice was at the same time served on the plaintiff’s attorney of a motion to be made at the next term to set aside the execution. The sheriff proceeded to sell the property, and struck it off to apersou who was notified, as soon as he bid for it, that the sheriff had no authority to make the sale, and that all proceedings on the ex*482ecution Rad been stayed. *Beld,,*that tbe execution and the *sale*should he set aside, the defendant having in good faith taken all the steps which he supposed were necessary to obtain a stay of the proceedings, and more especially as the judgment, though technically affirmed, was practically reversed before the sale.

APPEAL from tbe Circuit Court for *Crawford*County.

This was an action to foreclose a mortgage of real estate. Judgment was entered June 12,1860, for want of an answer Tbe judgment directed that “if the proceeds of such sale [of the mortgaged premises] be insufficient to pay the amount so reported [by tbe referee] as due to -the plaintiff, with interest and costs as aforesaid, the said sheriff shall specify tbe amount of such deficiency in his report of sale, and that the defendant *Anson Mdred*pay tbe same, and that tbe said plaintiff have execution therefor.” An application was made to set aside tbe judgment, upon affidavits tending to show that the defendant bad a good defense, and that bis omission to serve bis answer in time was owing to inadvertence and “ excusable neglect” This application was denied on the 28th of August, 1860, and the defendant appealed from the order denying it, and also appealed from tbe final judgment, to tbe supreme court, where, at tbe January term, 1861, the «order was reversed, with directions to the circuit court to set aside the default upon such terms as to that court might seem just; but the appeal from the judgment being an independent appeal, and there being no error apparent upon that record, the *judgment*was affirmed subject to tbe power of the circuit court to set it aside “according to the directions in the former appeal [from the order], and expressly saving to the appellant all his rights upon reversing that order.” 13 Wis.,. 482. The mortgaged premises were sold under the judgment in October, 1860, and tbe sheriff reported that there was a deficiency of $1930.95. The court confirmed tbe sale, and ordered that the “ plaintiff have execution against the property of said defendant for tbe balance due upon said judgment.” Eor this deficiency an execution was issued May 11,1861, returnable in sixty days, and levied upon two hundred and fifty shares of bank stock, as the property of the defendant, *Anson*Eldred, and tbe sale was advertised to *483take place on tbe 1st of June, 1861, at 3 o’clock, P. M. On tbat day tbe defendant made application to B. Bull, Esq., a court commissioner of Crawford county, to order a stay of proceedings in tbe action on tbe part of tbe plaintiff, for sixteen days, to enable tbe defendant to make a motion before tbe circuit court to set aside tbe execution, and Mr. Bull granted tbe order. This order was made upon tbe affidavit of one Urqubart, stating tbat said stock was advertised for sale, as above stated; tbat said stock .was, about tbe 1st of March, 1860, transferred by tbe defendant to Elisba Eldred, as collateral security for a debt of $10,000, which was still unpaid; that the judgment and opinion of-the supreme court on the appeal from tbe order before mentioned, bad been duly filed in the office of the clerk of the circuit court of Crawford county, a copy of which was appended to tbe affidavit. Tbe sheriff proceeded with the sale, and sold the bank stock to one H. H. Hall, for $500. Tbe defendant made bis motion in tbe circuit court, upon the affidavit of Urqubart and a certified copy of said opinion and judgment of the supreme court, to set aside said execution; and also moved, upon the affidavit of Rufus King and tbe papers therein referred to, for an order on the plaintiff to show cause why the sale of said bank stock should not be set aside. The affidavit of Mr. King was dated June 11th, 1861, and stated tbat on tbe 1st of June be served tbe order made'by Mr. Bull, as court commissioner, staying proceedings in said cause for sixteen days, upon tbe sheriff -who held said execution, by showing him said order about one hour before the time appointed for the sale of said bank stock, and by delivering to and leaving with him a copy thereof, and copies of tbe affidavit of said Urquhart, and of said judgment of the supreme court; that he served said order upon tbe plaintiff ’s attorney, O. B. Thomas, Esq., about half an hour before the time appointed for the sale of said bank stock, by showing him the original order and delivering to him a copy thereof, and of the papers on which it was founded, except tbat tbe copy of the judgment of the supreme court was not served on him until about two or three hours afterwards, and that at the time he served the order on tbe plaintiff’s *484attorney be served on bim a notice of a motion to be made at tbe next term of the circuit of Crawford county, to set aside said execution; that said sheriff proceeded to sell said bant stock at tbe time appointed in bis advertisement; that Henry H. Hall bid for tbe two hundred and fifty shares tbe sum of $500; that tbe affiant, being present, immediately gave notice to all persons that said sheriff bad no authority to make any sale upon said execution, and that an order bad been made and served on him, directing all proceedings on tbe part of the plaintiff to be stayed; that said Hall beard tbe affiant give said notice, and replied that .if tbe sheriff was selling bim anything without authority be should bold him responsible; that tbe sheriff struck off tbe stock to Mr. Hall for *$500;*that tbe nominal value of tbe stock was $25,000, and that it was worth, as the affiant believed, about $10,000. —In answer to tbe rule to show cause, tbe plaintiff read several affidavits, but as tbe facts stated in them relate only to tbe merits of the foreclosure action, and as they are not alluded to in tbe opinion of the court, nor by counsel in their arguments, they are omitted. A copy of tbe record of tbe appointment of Mr. Bull, as court commissioner, was introduced, showing that be was appointed on tbe 24th of May, 1859, for the term of two years. — Both motions were, *pro forma,*overruled on tbe 15th of June, 1861, and tbe defendant appealed. — On tbe 11th of June, 1861, the circuit court, upon a renewal of tbe motion to set aside or open tbe judgment of foreclosure rendered June 12th, 1860, ordered that said judgment be set aside and vacated, and that tbe defendant have leave to file bis answer and and defend, &c.

*Levi Hvbbell,*for appellant,

contended, among other things, that tbe sale should have been set aside because tbe plaintiff’s attorney and the sheriff bad notice before the sale that the supreme court bad ordered that tbe judgment obtained by tbe plaintiff should be vacated; and because tbe order staying all proceedings on the part of the plaintiff was served on tbe sheriff before tbe sale, and notice given to the *purchaser*at tbe time of tbe sale.

*0. B. Thomas*and *D. H.*Johnson, for respondents:

When tbe execution issued, there was no stay of proceed*485ings, and not even an appeal pending. The motion to open the judgment was pending in the circuit court, but no stay of proceedings upon that motion had ever.been awarded or applied for. Where a defendant fails to apply for a stay of execution upon the proceedings to vacate a judgment, he elects to let the judgment be executed, and to resort to his remedy for restitution, if he succeeds in vacating it. 2. The stay of proceedings awarded by Mr. Bull was unauthorized because he was not a court commissioner, and because it was made without notice and out of court after judgment, and because the ulterior relief which it purported to aid had not been applied for, and no order to show cause or motion papers for such ulterior relief were served with the order. See 4 How. Pr. B., 246-8; 8 id., 89, 849; 6 id., 367; 13 id., 374; 5 Cow., 428; Tidd’sPr., 511, *et*seq.; 2 Chit. Gren. Pr., 26, 557 *et seq.,*& 583. Indeed, the agent for the appellant swears that he did not serve the principal motion paper until about three hours after the sale. See 8 Wis., 376. Mr. Bull’s order was also unauthorized because he undertook to stay proceedings for a definite time. 3. The application to set-aside the sale was properly overruled in the circuit court, because upon the face of it, it was made by a person having no interest in the property sold which could be affected by the sale *(Coleman vs.*Spencer, 5 Blackf., 197); and because it is contrary to the practice of our courts to try the title to property upon motion, even where the owner of the property makes the motion. 4. The application to set aside the execution was properly overruled because it was made after the execution was returned, and because no proper security was given or offered, and because it was not shown that the execution had been improperly issued, or that the levy or sale was irregular, fraudulent or oppressive. 5. The purchaser at the sale will be protected in any event, because he had no notice of the alleged irregularities of the sale, except a verbal rumor started after he had bid, and just as the property was being struck off to him. 1 Maul. & Sel., 425; Yelv., 179; 3 Bac. Abr., 420; 11 Yin. Abr., 40; 5 Barb., 565; 4 Barb., 180; 8 Johns., 361; 11 id., 513; 13 id., 97, *486537; 8 Wend., 9; 1 Cow., 711; 1 Miss., 754; Coxe, 39; 2 . Bibb, 202; 4 Wis., 1; 5 Wis., 443.

September 1.

*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 *487tbe 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 *488tbe 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.