Eckstein v. Calderwood
Before: Sanderson
Synopsis
Motion to set aside Execution Sale—¡Notice to Purchaser. — The purchaser at a Sheriff’s sale is entitled to notice of motion to set it aside.
Idem—Mode op Service.—The fact that the purchaser is absent from the State at the time of the sale, or of the motion to set it aside, does not excuse the service on him of notice to show cause. Where personal service cannot be made, it should be made as prescribed in section five hundred and twenty of the Practice Act.
By the Court, Sanderson, J.: The purchaser at a Sheriff’s sale is entitled to notice of a motion to set it aside. The case not only shows that no notice was served upon Kelson, but it fails to show that he appeared.
The fact that he was absent from the State at the time of the sale, or at the time the motion was made, if such was the fact, (which latter fact does not appear, however,) did not excuse the defendants from serving him with a copy of the order to show cause. Personal service was not required. It could have been served by leaving it at his residence, if known, with some person of suitable age and discretion, between the hours of eight in the morning and six in the evening; or, if his residence was not known, by inclosing it in an envelop and depositing it in the Post Office, addressed to him. (Practice Act, Sec. 520, 2d subd.)
As against the appellant the order is reversed.
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