#### Goit in the suit of Knapp vs. Dickerman.

*Writ of assistance*— If *against stranger to suit, cannot Tie issued without order of court,*

1. A writ of assistance to put the purchaser at a foreclosure sale in possession of the premises, as against a *stranger*to the suit, can issue only upon order of the court. .

2. Otherwise (under Equity Rule No. 8), where the party in possession is a defendant.

APPEAL from tbe County Court of *Ozauhee*County.

*Knapp*obtained a judgment of foreclosure and sale of mortgaged premises, against one Diekerman (tbe mortgagor) and bis wife, one Hoyt and bis wife, and one Whipple, said Hoyt and Whipple being made defendants as subsequent incum-brancers. Whipple did not appear to tbe action, and tbe only evidence of service of tbe summons upon him was an acceptance of service in bis name “ by bis attorney in fact, C. L. DickermAN,” purporting to be by virtue of a power of attorney recorded in tbe office of tbe register of deeds of said county in a specified volume and page. Tbe only proof of tbe filing of *lis pendens*was an affidavit of tbe plaintiff’s attorney, filed with tbe papers, stating that, on &c., 11 a notice of tbe pendency of this action, in tbe form prescribed by tbe laws of Wisconsin, and containing, as this deponent believes, correctly and truly all tbe particulars required by law to be stated in such notice, was filed,” &c. At tbe foreclosure sale, tbe premises were sold to Knapp, and a sheriff’s deed made to him. Tbe appellant *Q-oit*was in possession of tbe premises, having purchased them of Whipple after tbe commencement of tbe action; and be refusing to deliver tbe possession to Knapp, tbe latter obtained from tbe clerk of tbe circuit court in vacation a writ of assistance, directed to tbe sheriff, which ran against said Gtoil, by name, as well as against tbe defendants named in tbe action. Tbe judge of the' county court, on tbe application of *Gfoit,*set aside tbe writ; tbe circuit court subsequently set *631aside tbe order of tbe county court; and from tbis decision *Goit*appealed.

*Foster &*Turner, for appellant:

1. Tbe appellant is entitled to move in tbe action to set aside tbe writ. *Gelpéke v. Bailroad,*11 Wis., 454. 2. Tbe writ should be set aside. A writ of assistance is an execution (R. S., cb. 134, secs. 3, 4); and an execution must follow tbe judgment. But *Goit*is not named as a party to tbe judgment, nor is tbe fact therein adjudicated that be claimed under a party to it. 3. *Goit*was in possession under Whipple, who did not appear in tbe action, and upon whom there is no proof of service of process. 4. Even if jurisdiction was obtained over Whipple, *Goit*is not bound, there being no proper proof that notice of *lis pendens*was filed. Counsel also contended that tbe county judge bad power to set aside tbe writ, citing E. S., cb. 140, secs. 29, 31.

*Eugene S.*Turner, for respondent,

argued, among other things, that tbe county judge bad no power to make tbe order setting aside a writ of assistance issued from the circuit court.

Cole, J.

It appears that tbe writ of assistance was issued by tbe clerk on tbe application of tbe attorney for tbe plaintiff' in tbe foreclosure proceedings, without notice to tbe persons h> be affected thereby, and without any order of tbe court or judge granting tbe writ. Now, while it is held in New York, under tbe code, that after a judgment of foreclosure directing that tbe purchaser be let into the possession, and after a sale-of tbe premises, tbe purchaser, on proof that be has exhibited tbe sheriff’s deed, &c., and demanded possession, may have an *ex parte*order for a writ of assistance without notice to tbe parties in tbe action *(New York Life Ins. & Trust Co. v. Rand et al.,*8 How. Pr. R., 35; *Same case,*affirmed at general term, p. 352; *Same v. Cutler et al.,*9 How. Pr. R., 407; *Lynde v. O'Donnell,*21 id., 34), yet we know of no case which decides that tbe writ may be issued by tbe clerk without an order. In *632tbe note to the case of *Belts v.*Birdsall, 11 Abbott Pr. R., 222, it is stated by the reporter that it seems a writ of assistance, being in the nature of an execution upon the judgment, may issue under the code without an order, and the case above cited from the ninth of Howard is relied on in support of this position ; yet it will be seen, upon an examination of the opinion in that case, that it decides no such point. As a matter of fact the writ of assistance was granted in that case on motion, by the court, at special term ; and therefore no such question of practice was before Mr. Justice Welles as the reporter assumes was decided. But although the purchaser at the foreclosure sale, on proof that he has exhibited the sheriff’s deed and demanded possession, may be entitled to an *ex parte*order for a writ of assistance from the court having jurisdiction of the cause (or perhaps the order might be granted by the judge at chambers), still he should obtain such an order when the writ goes against one situated as *Goit*is in this case. If the writ issues without any order, we think it should be held irregular and void.

The circuit court, by vacating the order of the county judge setting aside the writ of assistance, in effect decided that the writ was properly issued. This was erroneous. The'writ was irregularly issued, for the reasons already given.

*By Hie Court*— The order of the circuit court is reversed, and the cause remanded for further joroceedings.

At the June term, a motion for a rehearing was denied.

Cole, J.

In the above opinion it is held that the writ of assistance was improperly issued by the clerk without an order of court. This was sufficient to dispose of the appeal. On the motion for a rehearing it is claimed that this practice is in direct conflict with old equity rule No. 8, still in force, as well as with several decisions of this court expounding that rule and pointing out the duty of the clerk under it. It is very clear, however, that the rule and decisions referred to are applicable *633only to a case where tbe writ is issued against a party to the suit. Ms *against the parties to the*suit, it may well be the duty of the clerk to issue the writ of assistance, when the requisite affidavit is made, without a special order of the court. But surely the rule does not authorize the clerk to issue the writ, without such an order, against one not a party to the suit nor bound by the judgment *Goit*was in possession of the premises under Whipple. And although Whipple was made a defendant in the action as the owner of the equity of redemption, yet it does not appear that the court ever acquired jurisdiction, over him. We refrained from expressing any opinion whether it would be competent for the circuit court, in the present attitude of the case, to determine *Goit's*rights or deprive him of the possession of the mortgaged property, because no such question was before us. Assuming, for the purpose of the appeal, that the court might do this, we merely held that the clerk had no power .to issue a writ of assistance as against him without some order of the court for issuing it. When it is borne in mind that neither he nor Whipple, under whom he claims title, was a party to the suit, we think there is nothing in the decision in conflict with the rulings in *Attorney General v.*Lum, 2 Wis., 509; *State ex rel. Chappell v.*Giles, 10 id., 101; *Gelpeke v. Mil. & Horicon R. R.*Co., 11 id., 454; or *Loomis v. Wheeler,*18 id., 524.

With this explanation of. our views, it is manifest that the former decision is right, and that the motion for a rehearing must be denied.

*By the Court.*— Motion denied.