Cunningham v. Felker

26 Iowa 117

• Court: Supreme Court of Iowa
• Decided: December 9, 1868
• Status: Published

Opinion

Dillon, Ch. J.

— The plaintiff claims that he is entitled to have the sheriff’s sale and deed set aside on various grounds. These we proceed to notice.

I.. For •variance between the execution and judgment.

1. Judicial sale: variance between judgement and writ. The judgment is for $201 debt, and $7.15 costs. The execution is for $201.50 debt, and $8.40 costs. The property sold for'less than the amount of the judgment. The difference in the amount of costs is accounted for by adding the clerk’s fee for the execution, $1.25, to the $7.15 specified in the judgment. The only real variance between the judgment 'and the execution, is fifty cents. As the parties, the date of judgment, the com’t which rendered it, etc., are accurately stated in the writ, the variance in the particular specified, does not render the sale void, as claimed by the appellant’s attorney. In Sprott v. Reid (3 G. Greene, 189), cited by appellant’s counsel, the variance was greater than in the present instance, and the sale was nevertheless upheld. See also, Cooley v. Brayton (16 Iowa, 10), and authorities there referred to; and Dean v. Goddard (13 Iowa, 292), and cases cited. The execution in this case sufficiently identifies the judgment to render certain the authority upon which it issued, and is not void.

II. Inadequacy of price:'

It is a sufficient answer to this objection to state that there is no evidence whatever in the record respecting the value of the lots.

III. Alleged failure to file transcript of judgment m Hardin county, in compliance with section 3219 of the Revision.

This is answered by the fact, that the record does show that such a transcript was filed in Hardin county on July 30th, 1860, prior to the date of the execution which issued from Johnson county, where the judgment was rendered. In the transcript filed in Hardin county there is no variance whatever between the amount of the judgment rendered in Johnson county and the amount stated in the transcript.

IY. Sale of the lots en masse.

2. — sale en masse: delay in attack. Prima facie the sheriff’s return shows this objection to be true in point of fact. There is no evidence to show that the lots were sold for less than their _ , . . value, or that the debtor was injured by the mode of sale adopted. This, and the unexcused delay of nearly six years to institute any proceedings to question the sale, j'ustify the decision of his honor below, denying the relief sought. The plaintiff alleged, but failed to prove, an excuse for this protracted delay.

Applications to set aside j'udicial sales for mere irregularities, ought not to be unreasonably deferred. Stewart v. Marshall, 4 G. Greene, 75.

In the present case the application was stale, leaving room for the inference of an acquiesence in the sale until a change in the value of the property had occurred.

Affirmed.