Bank v. Doherty

• Decision Date: 09 February 1905
• Citation: 37 Wash. 32,79 P. 486
• Parties: BANK v. DOHERTY et al.
• Court: Washington Supreme Court

79 P. 486

37 Wash. 32

BANK v. DOHERTY et al.

Supreme Court of Washington

February 9, 1905

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by Benjamin Bank against Earle Doherty and another, as administrators of the estate of Mary T. Doherty, deceased. From an order vacating an execution sale, defendants appeal. Affirmed.

Roberts & Leehey, for appellants.

Preston Carr & Gilman, for respondent.

PER CURIAM.

This is an appeal from an order vacating and setting aside a sale. In the early part of the year 1901 the respondent began an action against the appellants in the superior court of King county to foreclose a mortgage upon real property. In due course he recovered a judgment and decree of foreclosure in that court, and the judgment was brought here by the appellants for review. This court reversed the judgment (29 Wash. 233, 69 P. 732, 92 Am. St. Rep. 903) and sent the cause back with instructions to dismiss the action; holding that the same had been prematurely brought. When the remittitur went down, judgment was entered in the court below in favor of the appellants and against the respondent for the sum of $101.45, being the costs of both courts. Execution was thereafter issued on the judgment and placed in the hands of the sheriff, who seized and sold the respondent's note and mortgage, which had been filed in the clerk's office as a part of the records in the foreclosure suit. Shortly after the sale took place the respondent learned of the same, and immediately took steps to have the sale vacated and set aside; filing a motion for that purpose in the court out of which the execution issued. Affidavits were filed in support of and against the motion, and a hearing had, which resulted in an order vacating and setting aside the sale. The motion was based on several grounds, including inadequacy of price, and irregularity in the proceedings, failure to give proper notices of the sale, or to notify the judgment debtor thereof. The order of vacation was general, setting out no particular reason.

The appellant first assigns that the court erred in entertaining the motion to vacate the judgment because the same was not served on the purchaser at the sale, but we think this objection is met by the fact that the purchaser had parted with his interest in the note and mortgage prior to the hearing on the motion; having surrendered them to the administrator, and canceled the...