Brown v. Hopkins

77 N.W. 899, 101 Wis. 498, 1899 Wisc. LEXIS 122

• Court: Wisconsin Supreme Court
• Decided: January 10, 1899
• Status: Published

Opinions

"WinsLOw, J.

The plaintiff owned a judgment against the defendant Hopkins, which was rendered December 10,1811. On the 3d of December, 1891, execution was issued upon said judgment, by leave of court; and on the following day a levy was made upon certain real estate, and the same was advertised to be sold on the 31st of January, 1898. Motion was made by the defendant on the 11th of January, 1898, to vacate the execution and levy and all proceedings thereunder; and, upon the hearing, said motion was granted, whereupon the plaintiff appeals.

The question is whether an execution which is duly issued and partially executed by levying upon property within twenty years from the entry of a judgment expires at the end of the twenty-year period, or whether it remains valid and effective, so that the property so levied upon may be thereafter sold and applied to satisfy the command of the writ. Our .statute provides (R. S. 1818, sec. 4220) that a judgment of a court of record outlaws at the end of twenty years from the date of its rendition; and, further (R. S. 1818, sec. 2968), that “in no case shall an execution be issued, or any proceedings had on any judgment, after twenty years from the time of the rendition thereof.” It is very evident from this latter section that a valid execution may be issued at any time up to the last day of the twenty years; and the question is whether, when so issued, it is rendered void by the limitation upon the judgment. Our statute requires no order of confirmation of the sheriff’s sale, nor any other proceeding by the court, to perfect the purchaser’s title. Ro further proceedings upon the judgment are contemplated or required by the statute. The sale of the property by the sheriff, and the payment or application of the proceeds, are simply the carrying out of the commands of his writ, which, when issued, was perfectly valid. If these acts can bo called “ proceedings ” at all, they are strictly proceedings upon the execution, and not upon the judgment. Any other construction would practically interdict the issuance of an execution to be levied upon real estate for nearly a year and a half prior to the expiration of the twenty-year limitation, because the sheriff must advertise the sale for six weeks, and the time of redemption (fifteen months) must be allowed to expire before the sheriff can make a deed to the purchaser. R. S. 1878, secs. 2993, 3001, 3007, 3017. Ro such result was contemplated by the statute, nor do we think that the words of the statute require such a construction. Our conclusion is that the sheriff could complete the execution of his writ after the expiration of the twenty years, and hence that the execution and levy were wrongly set aside. The case of Ingraham v. Champion, 84 Wis. 235, wTas much relied on in support of the order, but the case is plainly inapplicable. In that case it was decided that a new judgment could not be obtained by motion in the old action, but only in a new action upon leave granted.

By the Court — Order reversed.