Schroeder v. Pehling

BUTLER, P. J.

The only question pesented on this appeal is the sufficiency of the findings of fact to sustain the conclusions of law and judgment awarding respondent possession of 320 acres of Spink county land of which appellant was formerly the owner. The proceedings leading up to the sheriff’s deed, tinder which respondent claims to be the fee-simple owner of the premises, are shown in substance as follows: The Plano Manufacturing Company, a creditor of appellant, obtained a judgment against him in circuit court on the 3d day of August, 1893, for $544.95, and 60 days later the same was duly entered in the office of the clerk of such court. An execution, prepared by the clerk in due form on the 4th day of December, 1899, was delivered to the sheriff on the 26th day of December, 1901, and upon-that date he levied upon the land in controversy, which, after the publication of a notice, was sold in satisfaction of the judgment to the Plano Manufacturing Company on the 14th day of Bebruary, 1902, and the writ was thereupon returned as required by statute. Three days later the sale was in all things duly confirmed by the judge of the circuit court. Respondent, having become the assignee of the certificate of sale, surrendered the same a-t the expiration of the redemption period and received his sheriff’s deed, which is in all respects fair upon its face. Upon the theory that, when the execution was issued by the clerk on December 4, 1899, it was issued to the sheriff, although not delivered to that officer until nearly two years later, it is urged that the time within which the same was returnable had expired long before the levy was made; but section 335 of the Revised Code of Civil Procedure expressly provides that “the1 execu *645 tion shall be returnable within sixty days after its receipt by the officer,” and it has been held by this court, so far as pertinent to the question here presented, that the issuance of an execution is not completed until the same is delivered to the officer for service. McDonald v. Fuller, Sheriff, 11 S. D. 355, 77 N. W. 581 .

Although notice of execution sale was published for the required time in an authorized newspaper, the description of the premises was erroneous, and not properly corrected until half the statutory period had elapsed; but the court having held such notice sufficient when the sale was confirmed, found at the trial that due and legal notice had been given. The objection now urged admits that a notice, though defective, was given, and no intimation is made that the respondent is not'entirely free from fault. No attempt was ever made by appellant to set aside the sale or correct the error which he seeks to make available by collateral attack to defeat this action. As the court had jurisdiction of the person and subject-matter and the judgment was in all respects regular, the error in describing the property was not a jurisdictional defect, rendering the acts of the officer absolutely void. An official report of all the proceedings, including the notice of sale, was before the court for adjudication at the time of confirmation, and it was expressly found upon examination that all the acts of the sheriff were regular and in conformity with the statute. Until reversed or set aside in a direct proceeding instituted for that purpose, the confirmation of an execution sale is conclusive as to everything found by the court that is essential to its legality. Watson v. Tromble Neb. 50 N. W. 331 , 29 Am. St. Rep. 492 ; Voorhees v. Bank of United States, 10 Pet. 449 , 9 L. Ed. 490 ; Swiggart v. Harber, 39 Am. Dec. 418 ; Neligh v. Keene, 16 Neb. 407 , 20 N. W. 277 ; Cooley v. Wilson, 42 Iowa 425 ; Moore v. Neil, 39 Ill. 256 .

It further appears that the execution was issued after the lapse of five years from the entry of judgment; but, in-the absence of anything whatever to the contrary, it will be presumed in support of the action of the trial court that leave was obtained or rendered unnecessary, pursuant to section 329 of the Revised Code of Civil Procedure.

Finding no error in the record, the judgment appealed from is affirmed.