Wells v. Dalrymple

29 F. Cas. 645, 15 Int. Rev. Rec. 59

Opinion

EMMONS, Circuit Judge,

held: That in proceeding to set aside a sale of real estate there must exist a judgment lien by statute, in which case the title must be in the judgment debtor, or a lien by levy, neither of which is here set up. That if this had been a ] denary bill in equity it would be dismissed on that ground. But two cases [Day v. Washburn, 24 How. (65 U. S.) 352; Adler v. Fenton, Id. 407] hold that unless this objection is taken in the answer, it will be held to be waived. The answer does not raise the question. If proceedings were remanded for amendment to petition, the answer could then also be amended so as to raise this question, which would be fatal to the petition, the fact being that no lien existed before this petition was filed. Proceeding to review the case on its merits, EMMONS, Circuit Judge, held, that an appellate court, before reversing a decree on a question of fact, should be able to see some plain mistake, some misapprehension of the fact, so plain a misapprehension, so evident an error, as to warrant the appellate court, with much confidence, in saying that were the case reargued in the court below, that court would reconsider its own judgment.