White-Diamond v. Hightower & Co.

Supreme Court of Georgia

White-Diamond v. Hightower & Co.

53 S.E. 1024, 125 Ga. 191, 1906 Ga. LEXIS 87

DecidedMarch 28, 1906

StatusPublished

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Bluebook

White-Diamond v. Hightower & Co., 53 S.E. 1024, 125 Ga. 191, 1906 Ga. LEXIS 87 (Ga. 1906).

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Opinion

Cobb, P. J.

(After stating the foregoing facts.) In a proceeding to set aside a sheriff’s sale, as a general rule, it is proper to make parties all persons interested in the sale. “Notice of a motion to set aside a sheriff’s sale should be given to all parties in interest.” 20 Enc. Pl. & Pr. 239. But in a case like the one under consideration, the plaintiff in execution is not a necessary party. In Stainton’s adm’r v. Simmons, 24 Ala. 410, it was said: “There was no necessity to make the plaintiffs in the execution under which the officer pretended to sell the property, parties to the motion to set aside the sale. They had no interest whatever in the controversy between the officer and the defendant in execution, arising out of the misconduct of the former in executing the process in his hands. The only parties at interest were the constable and the purchaser at his sale.” See also, Beach v. Dennis, 47 Ala. 262(1); Stone v. Day (Texas), 5 Am. St. Rep. 20. The only relief prayed against Hightower & Co., the plaintiffs in execution, was that embraced in the prayer “that the defendants be required to restore the status by [193]*193the return of the money paid thereat.” Whether Hightower & Co. shall repay to the purchaser the amount received by them on their execution, in the event the sale is set aside, is a matter of no concern to the defendant in execution. Indeed her interests lie directly against such a condition of affairs, for in that event the execution against her would be unsatisfied, and now it is not even a liability against her. If she succeeds in her suit, the purpose of which is to set aside the sheriff’s sale and retain possession of her property, all the rights she may have will have been protected and enforced. She may well rest content with this determination of the litigation, and permit the purchaser of her land to seek his remedy in his own behalf.

Judgment affirmed.

All the Justices concur.

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Cobb, P. J.

(After stating the foregoing facts.) In a proceeding to set aside a sheriff’s sale, as a general rule, it is proper to make parties all persons interested in the sale. “Notice of a motion to set aside a sheriff’s sale should be given to all parties in interest.” 20 Enc. Pl. & Pr. 239. But in a case like the one under consideration, the plaintiff in execution is not a necessary party. In Stainton’s adm’r v. Simmons, 24 Ala. 410, it was said: “There was no necessity to make the plaintiffs in the execution under which the officer pretended to sell the property, parties to the motion to set aside the sale. They had no interest whatever in the controversy between the officer and the defendant in execution, arising out of the misconduct of the former in executing the process in his hands. The only parties at interest were the constable and the purchaser at his sale.” See also, Beach v. Dennis, 47 Ala. 262(1); Stone v. Day (Texas), 5 Am. St. Rep. 20. The only relief prayed against Hightower & Co., the plaintiffs in execution, was that embraced in the prayer “that the defendants be required to restore the status by [193]*193the return of the money paid thereat.” Whether Hightower & Co. shall repay to the purchaser the amount received by them on their execution, in the event the sale is set aside, is a matter of no concern to the defendant in execution. Indeed her interests lie directly against such a condition of affairs, for in that event the execution against her would be unsatisfied, and now it is not even a liability against her. If she succeeds in her suit, the purpose of which is to set aside the sheriff’s sale and retain possession of her property, all the rights she may have will have been protected and enforced. She may well rest content with this determination of the litigation, and permit the purchaser of her land to seek his remedy in his own behalf.

Judgment affirmed.

All the Justices concur.

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Bluebook (online)

53 S.E. 1024, 125 Ga. 191, 1906 Ga. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-diamond-v-hightower-co-ga-1906.

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