#### Loomis vs. Wheeler.

In an action against a sheriff for a refusal to execute a writ of assistance by putting the plaintiff in possession of land, purchased by him at a foreclosure sale and conveyed to him by sheriff’s deed, the complaint should show the parties to the foreclosure judgment, and the term at which it was entered; otherwise it does not state a cause of action.

But it is not necessary, in such a case, that the complaint should set forth all the facts which gave the circuit court jurisdiction of the foreclosure action. That court being one of general jurisdiction, its jurisdiction to render the judgment will be presumed.

tTnder Rule 31, Circuit Court Rules of 1857, the purchaser at a foreclosure sale, under a judgment so directing, is entitled to be let into possession, and, if need be, to a writ of assistance, *"before confirmation*of the sale.

APPEAL from tbe Circuit Court for *Fond du Lac*County.

Tbis was an action against tbe sheriff of said county, for damages for bis refusing to execute a writ of assistance. Tbe complaint alleges that tbe plaintiff, on tbe 15tb of August,1862, purchased certain land therein described, “ at a foreclosure *525sale made by said defendant, acting and being sheriff of the county of Fond du Lac, in pursuance of a judgment in this court, in which, among other things,’ it was ordered that the purchaser should be let into possession on production of the sheriff’s deed; that upon said purchase the plaintiff received from the defendant, as such sheriff, a deed of said land ; and that the principal defendant in- the foreclosure action, who was in possession of the land, refused to let the plaintiff into possession when the same was demanded and the deed read to him. The complaint then avers the issue of the writ of assistance by the clerk of said court, under its seal, duly tested, and directed to said sheriff, the placing of the same in his hands, to be executed, with tender of his fees &c., his refusal to execute it, and the consequential damages, for which judgment is demanded. — The defendant demurred to the complaint as not stating a cause of action; the demurrer was sustained ; and the plaintiff appealed.

*B. P. Eaton,*for appellant,

cited Buies in Equity, 1857, Buie 8; B.S., ch. 18, sec. 103. A sheriff cannot question the regularity of process. 1 Nev. & Man., 234. If the writ is good on its face, the sheriff is justiñed in attaching property. 2 N. H., 211.

*Qillett &*Conklin, for respondent:

1. A ministerial officer will not be compelled to execute any process which was issued without jurisdiction in fact, and when the want of jurisdiction was admitted - upon the record, although the process was regular upon its face. *People v. Schoon-maker,*13 N. Y., 238 ; *Cornell v. Barnes,*7 Hill, 35; *McDonald v. Bunn,*3 Den., 45. The officer, if satisfied that there was a want of jurisdiction to issue the process, may refuse to execute it. *Earl v. Camp,*16 Wend.-, 562. 2. The complaint does not show that the writ of assistance was issued with jurisdiction in fact, and no record is set up or referred to by which the officer was to satisfy himself, and act under it or refuse to act as jurisdiction should or should not appear. 3. The pro*526ceedings and judgment in foreclosure are not complete until tbe filing of tbe report of sale, and tbe confirmation of tbe sale; and a writ of assistance cannot issue until that time. Circuit Court Rules, 1 and 31; Whitt. Pr., 663; Tillinghast & Sb. Pr., 203; 5 Sandf., 447 ; 8 How. Pr. R., 35; id., 352. Tbe clerk of tbe court has not j urisdiction to issue a writ of assistance in vacation.

*By the*Court,

DixoN, C. J.

I think tbe complaint is defective in not showing tbe parties to tbe foreclosure judgment, and tbe term at which it was entered. It is a general rule, in actions upon judgments, that tbe term, parties, and sum recovered, must be stated with certainty. 1 Chitty’s Pl., 371. It is true that here tbe action is not upon tbe judgment of foreclosure, but tbe plaintiff’s whole interest and right to maintain tbe action comes through it, and I think be should set it out, so far at least as to show tbe parties and tbe time of its rendition. This is necessary to enable the defendant to answer. He may wish to consult tbe record to ascertain tbe facts regarding tbe alleged sale, or to plead that there was no such judgment, in case be shall be so advised. Tbe sheriff cannot be supposed to charge bis mind with everything that occurs in tbe course of bis official transactions. He is entitled to tbe same benefits in pleading, tbe same concise statement of facts constituting tbe alleged cause of action, as if be were a stranger to everything which took place under tbe judgment of foreclosure. Tbe plaintiff may not be required to state facts showing j urisdiction, for tbe circuit court, in which tbe judgment is alleged to have been rendered, is a court of general jurisdiction, and jurisdiction of the foreclosure action will therefore be presumed; but be must point out with precision tbe judgment under which be claims to have purchased, and by virtue of which tbe writ of assistance was issued.

Upon tbe other point presented in argument, I am against tbe defendant. I think that by Rule 31, Rules of 1857, tbe *527purchaser at a foreclosure sale, under a judgment so directing, is entitled to be let into possession, and, if need be, to a writ of assistance, before confirmation of the sale. The rule says he is entitled to such possession in so many words; and 1 can see no object in having rules of practice unless effect is given to them according to their obvious meaning. A rule prescribing one thing and meaning the very opposite, would be but a snare in the path of the unwary. “ Unless otherwise specially ordered by the court, the judgment shall direct * * * that the purchaser at such sale be let into possession of the premises on production of the deed,” is the language of the rule. It seems that this plain language has been evaded in some instances in New York, and a confirmation held necessary before the purchaser can be put into possession; but I cannot do so. I am for adhering to the rule so long as we have it. By the former practice in equity, a confirmation of the sale was necessary before the possession was to be delivered; and such was the decree. . It provided for a delivery of possession to the purchaser, on production of the master’s or sheriff’s deed and a certified copy of the order confirming the report of sale, after such order had become absolute. But the rule of 1857 seems expressly intended to modify the practice in this respect; and I can see no means of evading the effect of a judgment entered in the manner prescribed by the rule. If there be any reason why the judgment in this respect should not at once be executed and possession delivered — if the defendant intends to oppose the confirmation or to move to set the sale aside — let him prepare his affidavits, make his motion, serve his papers, and obtain a stay of proceedings from the court or a judge thereof, and no mischief can result from the practice. If, on the other hand, there is to be no opposition, and the sale is to stand, it is very proper that possession should be immediately delivered.

Order affirmed.