Gapen v. Stephenson

*615 The opinion of the court was delivered by Horton, C. J.:

Plaintiffs in error, by this proceeding,, seek to reverse the order of the court below confirming the sale of the real estate made by the sheriff in the action.. Upon the hearing of the motion to confirm, the plaintiffs in error interposed their motion to set aside the sale for the reasons — “ 1st, That the sheriff returned Thomas H. Wills, as the-purchaser at the sale, when in truth and in fact said Wills did not bid upon nor purchase the real estate at the sale, but one H. M. Bradley bid upon and was the purchaser of the property for himself, and not for Wills:

“ 2d, That the attachment proceedings in the suit, in which,, after the judgment, the sale was made, were irregular, and not according to the provisions of law, as one of the persons selected and summoned by the sheriff to make an appraisement of the property attached was not a householder at the time of his. selection, nor at the time of the appraisement under the attachment:

“ 3d, That the real estate was at the date of the attachment,, at the time of the judgment, and on the day of sale, the homestead of plaintiffs in error, and still continues to be their homestead, and is exempt from forced sale under any process-of law; and that the judgment upon which the real estate was sold was not obtained for the payment of any obligation contracted for the purchase of the premises, nor for the erection of improvements thereon, nor was the execution issued to enforce any lien given by the consent of plaintiffs in error.”

The sale was ordered to satisfy a judgment wherein L. T, Stephenson was plaintiff, and James Z. Gapen was the only defendant. An order of attachment was issued and levied upon the land at the commencement of the action. Before the trial of the cause, the said James Z. Gapen moved to dissolve the attachment, assigning many causes, but including two of the grounds contained in the motion to set aside the sale, viz., that the land attached was the debtor’s homestead, and that the appraisement in the attachment-proceedings was irregular, as one of the appraisers was not a householder.

*616

i.purchaser at asSgnment'of bid. Deed to assignee.

*615 I. In support of the allegation that H. M. Bradley was^ the highest bidder at the sale and the purchaser, the court be *616 low permitted the sheriff to testify, that he made the return of sale in the name of Thos. H. Wills, upon the written order of Bradley, who was in fact the purchaser of the property sold upon execution. The order of Bradley to the sheriff was to the effect, that he had trans- ' ferred the purchase made by him of the Gapen farm to Thos. H. Wills, and directing the sheriff to make his report of sale so that the confirmation would be in the name of Wills. The return upon the order of sale contradicts the statement of the sheriff, as therein the report is made, that he “sold at public auction the property for the sum of seventeen hundred dollars to Thomas H. Wills, he being the highest bidder, and the sum of $1,700 being the highest and best price bid for the land.” The sheriff might have been permitted by the court to have amended his return if it had been thought necessary, but the return could not be contradicted in this manner, and the first reason given for setting aside the sale is entirely insufficient. Bond v. Wilson, 8 Kas. 228; Starkweather v. Morgan, 15 Kas. 274 . It seems also well settled, if the sheriff had made a return upon the order of sale, in accordance with the facts within his own personal knowledge, that upon a sale to Bradley, the deed could be made to Wills. The purchaser may at any time before the confirmation of the sale assign his bid to another, and the act will be confirmed by the court. Lessee of Ewing v. Higby, 7 Ohio 198, 204 ; Thompson v. Manama, 2 Disney’s Rep. 213; Jamison v. Indor, 3 B. Mon. 357 ; Frizzle v. Beach, 1 Dana, (Ky.) 212.

, „ . attachment error curei II. The fact that an appraiser summoned at the time of the attachment to inventory and appraise the property, was disqualified under the law to act, is no ground to se£ asi<je a sale made under an execution upon a final judgment subsequently rendered in the action in which the property sold was levied upon under the order of attachment. Where there has been a general appearance by a defendant in the case prior to such judgment, any mere irregularity in the service, or proceedings under a *617 writ of attachment, not taken advantage of by the defendant contesting the action prior to the trial, is waived, and after judgment is no longer any matter of complaint. Sec. 228 of the pode (Gen. Stat. 1868, p. 672,) giving authority to discharge an attachment as to the whole or a part of the property attached, prescribes that the defendant is to make the motion before judgment. After judgment, and a decree to sell the attached property, the object of the appraisement under the process of attachment has been accomplished — the appraisement has become, so to speak, functus officio. Before a .sale can be made under the order of the court on the judgment, another appraisement of the real estate must be had. In this case however, a motion to dissolve the attachment, and discharge the property attached, was made within the time prescribed, but as no error is assigned thereon we do not consider this question in this opinion. 3 HomesteadIgafnsthustana alone.

III. The last question to be considered is, whether under the circumstances, the sale should have been set aside upon the motion that the property was the homestead of said James Z. and Myra E. Gapen. Myra E. Gapen was not a party to the action in which the attachment was issued, the judgment rendered, or the sale made. None of her rights could be prejudiced by any judgment, decreej or order of the court to which she was neither a party nor privy. If the farm in controversy is a homestead, in a proper proceeding the wife can be fully heard, and the law will give her a time, and place, and tribunal to establish her legal claims. This court has already held that a judgment rendered against the husband alone is not a lien on the homestead. Morris v. Ward, 5 Kas. 239 . The fact that the wife joins her husband in the motion to set aside the sale, does not make her a party to the suit, and we must disregard her appearance in the matter, and consider the case the same as if the motion hád been filed by James Z, Gapen alone. After Gapen had introduced all his evidence to support the motion to discharge the property as a homestead, Stephenson then offered in answer thereto the mo *618 tion heretofore filed in the ease to discharge the attachment, and the order of the court overruling the motion. T]he mo- ' tion to set aside the sale, because the property was a homestead, was virtually a renewal of the motion previously made by Gapen, and overruled by the court to discharge the attached property. While the doctrine of res adjudieata, in its strict sense, does not apply in this ease, still, as the motion was once denied, and exceptions could have been taken thereto, and as the decision of the motion will not affect the ultimate rights of the parties in a regular suit involving the same issues, we see no cause for the interference of this court to reverse the order of the court below overruling the motion on the point presented, that the property is a homestead. “The court must be allowed a reasonable discretion in each case, in determining what shall, and what shall not be sufficient ground to set aside a sale.” White-Crow v. White-Wing, 3 Kas. 276 .

The order of the court below is affirmed.

All the Justices concurring.