Quarles v. Hiern

Cooper, J.,

delivered the opinion of the court.

The decree in this cause must rest, either upon the fact found by the chancellor, that Hieru was never served with the process issued by the justice of the peace by whom the judgment in favor of Dale and against Hiern was rendered, or upon the other fact found by the chancellor, that there were irregularities in the sale, by reason of which it should be vacated. The decree is silent as to the facts found by the court. Being general in its terms, and the appellee not being represented in this court, we are not advised upon what ground the decree rests.

A careful scrutiny of the record fails to disclose a ease for relief, upon the ground that the process upon which the judgment was rendered was-not, in fact, served upon the defendant. True, the complainant swears that the process was not served, but, opposed to his testimony, is the presumption of due performance of official duty by the constable, his return made at the time showing personal service of the writ, his testimony that, in fact, the service was made as returned, and the evidence of the justice of the peace, that, on the return-day, he met Heim, who told him he had'no defense to the suit, and directed him to enter judgment.

While one. against whom a judgment is rendered without notice, may have relief upon disproving the return of the officer, it is incumbent upon him to make clear and convincing proof. It will not be sufficient, if, on the whole case, the matter is left in doubt. Some faith and credit must be given to the acts of sworn officers, and to the returns they make in reference to the discharge of their official duties, and only the clearest and most convincing evidence should be accepted by courts as sufficient to disturb judgments apparently valid and regular. Duncan v. Gerdine, 59 Miss., 550 .

It does not appear that Quarles, who, at the execution sale, became the purchaser of a part of the land, had any notice of the irregularity of the published notice of sale. The complainant avers that, at the sale, he caused notice to be *895 given that the judgment under which the officer was proceeding was invalid, and that the sale would therefore be contested. But there is no suggestion, either in the pleadings or evidence, that objection was made because of any irregularity in the publication of the notice of sale, or that Quarles had any notice of such irregularity. Under such circumstances, he was entitled to act upon the assumption that the officer had discharged his duty in making the publication, and, though irregularities may have existed in the publication of the notice, his title acquired at the sale cannot be affected. Lum v. Reed, 53 Miss., 73 ; Hanks v. Neal, 44 Ib., 212; Minor v. Natchez, 4 Smed. & M., 602; Freeman on Ex., § 286.

As to the purchase by Dale, the judgment creditor„a different rule applies. It was his process under which the sale was made, and the defective publication was the result of the failure of the officer acting for him to perform the duty imposed by law for the protection of the rights of the defendant in execution. In a direct proceeding to attack the sale, as is this, we think a different rule than that applicable to purchases by third persons should control.

If the complainant had appeared at the return-term of the execution, and there moved to vacate the sale, and had shown, as he now does, that property worth four hundred dollars had been sold for forty dollars, and that the sale had not been advertised for the time fixed by law, it would have been proper for the law court to afford relief. The same rule should be applied in equity, where seasonable application is made for relief, and when the complainant has done nothing to waive his right. Collins v. Smith, 57 Wis., 284 .

We do not decide that the publication of a notice of sale in the supplement of a newspaper is not a publication in the paper as required by law. We think the evidence here is insufficient to show that there was a publication in any regular supplement of the newspaper on the eleventh of July. What is copied in the record as the supplement, contains *896 nothing except the notice of sale, and there is no suggestion in evidence that it was sent out with the edition of that date. On the contrary, the sheriff, who was introduced as a witness for the defendants, distinctly stated that the first publication was made in the paper of the eighteenth, and .gave as a reason for his neglect to advertise on tbe eleventh, an agreement with counsel for appellee that publication on the eighteenth, twenty-fifth and first should he recognized as legal.

The decree of the court below is reversed on the appeal of Quarles; otherwise it is affirmed. Costs of this appeal to be divided between appellant, Dale, and the appellee.