Van Gelder v. Van Gelder

The question in dispute relates to the sheriff’s right to collect the printer’s fees for the postponements. The defendant makes several points, of which only two are discussed by the learned justice who decided the motion. ' The others may be examined briefly.

Fwst. The defendant insists that there is no indorsement on the execution of a levy within sixty days after issue. The cases cited by the defendant refer to levies on personal property. No formal levy on real estate is needed. ( Wood v. Colvin, 5 Hill, 228.)

Second. The alleged irregularities in the postponements are not such as to invalidate the sale.

Third. The signing of some of the notices by the title of “sheriff” instead of “late sheriff,” is a mere irregularity, of no importance to any one.

Fourth. The defendant claims that the sheriff should have sold *360in parcels. It appears that, on the day of sale, the defendant himself made a demand for the sale in parcels. On an examination of the affidavits in reply, it appears that the two parcels are not distinct or separate; that there is not even a fence between them. They seem to be pieces of the whole lot, arbitrarily cut off by means of the description and separating the house from the road. If the diagram is a fair representation, the demand ought not to have been granted. It is not easy for us to understand the description contained in the execution. But it appears to describe only one lot. And, when the defendant made the demand, he was informed that the descriptions in his demand did not compare with the premises advertised, and that the plaintiff’s attorney did not know that they were parts thereof. Judging from the diagram and the time when the demand was made, the object of the demand was to embarrass the plaintiffs in their sale. There is no evidence that these premises consisted of several “known lots, tracts or parcels.”

Fifth. The defendant insists that the sheriff cannot collect his fees until they have been taxed, if demand be made. (Code Oiv. Pro., § 3287.) The defendant made no demand until just on the day and at the time when the sale was to take place. And the sheriff afterwards noticed his bill for taxation before a justice of the court. The sheriff was ready to sell. The defendant did not then reqnest a postponement of the sale. So that, according to his argument in this case, the defendant could not have been required to pay the costs of a postponement of the sale, if it had been postponed to allow a taxation of the sheriff’s fees. This statute, which was intended to protect defendants, should not be used for the purpose of embarrassing and delaying plaintiffs. It was the duty of the sheriff to collect the execution. And we do not think the sale should be set aside on the ground of the demand for taxation.

Sixth. It is urged that the sale was in violation of the injunction. Before the union of law and equity in one court, if such an injunction had been violated, the remedy would have been by punishment for contempt in the equity court. W e are referred to no authority which holds that a sale would have been void because made in violation of an injunction. Perhaps, since law and equity are administered in the same court, a sale in violation of an in june*361tion might, in a proper case, be set aside. But yet, as the injunction order was in another action and there was no stay of proceedings in the present action, the sale was not irregular. We think that the party claiming to be injured should be turned over to the ordinary practice of punishment for contempt. Because really, in the present case, the violation of the injunction was only technical. The sheriff was restrained until the further order of the court. The report of the referee stands as a decision of the court. (Code Civ. Pro., 1228.) If the action had been tried by the court, and its decision had been made, such decision could not afterwards be changed or modified. (Peters v. Carpenter, 32 Sup. Ct. N. Y., 529, Nov. 1881.) The entering of a judgment thereon would be only a formal act to be done, of course. And after a court had, by its decision, dismissed the complaint and had decided that the plaintiff was not entitled to an injunction, it would be very inconsistent t® punish a defendant for a violation of an injunction previously granted, merely on the ground that the formal judgment roll had not been perfected.

Seventh. The defendant insists that the sheriff was not entitled to be repaid for the amount he had paid the printer for advertisements beyond six weeks. (Code Civil Pro., 3307, sub. 9.) This is the important question in the case. The language of the section is, “ where the notice is published more than six weeks, or the sale is postponed, the expense of continuing, the publication or of publishing the notice of postponement must be paid by the person requesting it.” Now, there is no proof that the plaintiffs requested any postponement. On the contrary, it is proved that they did not request, as they certainly did not desire, any postponement. They were under no obligation to do anything, or to give any direction to the sheriff. They had issued the process which directed the sheriff to collect. It was his duty to use all means in his power to collect the debt, except so far as he was restrained. The defendant applied to the court and obtained an injunction forbidding the sale only. The sheriff then, so far as we can see, could not have safely returned his execution or stopped his advertisement. Por. if the injunction had been dissolved in a few weeks (as it might have been) the plaintiffs could probably have held the sheriff liable for not continuing ready to sell.

*362The plaintiffs had a valid judgment which they had a right to collect. The defendant had no defense or equity against that judgment. Rut upon allegations, which have proved to be groundless^ he attempted to stop the plaintiffs in their collection. The court at his request went so far as to enjoin the sale but not the advertisement. The defendant took that injunction, to the limited extent to which it was allowed, knowing that it permitted a continuance of the advertisement, and he acted upon it, serving it on the plaintiffs and on the sheriff. In all fair construction this was a request by him for the postponement. It was the defendant who did not wish the sale to take place at the time originally appointed. It was for his convenience that it was postponed in order that he might litigate a claim which has proved to be groundless. The duty of the sheriff was to sell as soon as he could. When, therefore, the defendant put an obstacle in the way of the sale, the duty still remained on the sheriff not to abandon the advertisement already made, but to remain ready to sell as soon as the obstacle was removed.

The defendant could have prevented any difficulty. He could have paid in the money. (Code Civil Pro., 613.) He could have allowed the sale to go forward, and could have recovered his claim in the suit which he had commenced. It was therefore his own choice to accept and use an injunction which restrained the sale only.

If the sheriff, at his own instance or by the plaintiffs’ direction, on being served with a copy of the injunction, had discontinued the advertisement, and if the defendant had been (as he was) unsuccessful in his injunction action, how could the fees of the sheriff and his expenses for printing, accrued when he discontinued the advertisement, have been recovered ? The defendant might have tendered the amount of the judgment and interest. He could have said, with truth, that the discontinuance of the advertisement was voluntary on the part of the sheriff or of the plaintiffs, and that they had thus lost all claim for fees or expenses then accrued. (See the form of bond; Code Civil Pro., §§ 613, 618.)

The plaintiffs were, in this case, in more than ordinary difficulty. The judgment lien is only for ten years. (Old Code, 282; Code Civil Pro., 1251.) It would expire, therefore, November 15, 1879. The stays of proceedings from February, 1877, to January, 1879, extended the lien, but not against a purchaser, creditor or mortgagee *363in good faith, so that after November 15,1879, the defendant could convey or encumber free from the lien. The injunction was obtained March 7, 1879, therefore only about eight months remained during which the lien continued as against everyone. On the 20th September, 1879, a motion was made to dissolve the-injunction. If that had been granted the sheriff could have sold under the advertisement and postponements. If he had abandoned the advertisement when served with the injunction he would have had less than two months within which to advertise again.

This question seems to have been in one form raised on the motion to dissolve the injunction. Upon that motion the defendant asked a modification of the injunction so that the advertisements and postponements be enjoined. The plaintiffs opposed and the court refused to modify. If the court had held that it was the sheriff’s duty to abandon the advertisements, the injunction would have directed him to do so. The court would have had no power to direct affirmatively the advertisements to be continued, or to direct the costs thereof to abide the event.

Every reason of justice requires that the defendant and not the sheriff should pay these expenses.

"We think the order should be reversed, with ten dollars costs and printing disbursements.

Order reversed, with ten dollars costs and printing disbursements, and motion to set aside sale denied, with ten dollars costs.