Peterson v. Weissbein Bros.

Ross, J. The object of this suit, in which the plaintiff was successful in the court below, was to obtain a decree annulling a certain judgment rendered by a justice of the peace and a certain sale of real property made under an execution issued upon the judgment. The complaint in substance charges that the defendant, Weissbein Brothers & Co., a B. & B. corporation, is, and was at the times mentioned in the complaint, a corporation organized and existing under the laws of the State, and as such on the 9th of September, 1882, placed in the hands of a certain justice of the peace a certain promissory note executed by the plaintiff herein for $98.95, payable sixty days after its date to one Walker or order, and which note was indorsed by Walker. That the justice of the peace, on said 9th of September, filed the [44]note as a complaint, and in his docket entered the cause of Weissbein Brothers & Co., a B. and B. corporation, plaintiff, against A. P. Peterson, defendant, and thereupon issued a summons in the action, which was served upon the defendant therein—plaintff here—and, at the same time, there was also served upon the defendant therein—plaintiff here—another or alias summons, which was issued in the action by the justice of the peace on the 19th day of September, 1882. The complaint in the present action further charges that the plaintiff here, defendant in the action before the justice of the peace, failed to answer the complaint therein, and on the 26th day of September the justice of the peace rendered and entered a judgment in the action in favor of the plaintiff and against the defendant therein for the sum of $116.90, on which judgment an execution was, on the next day, issued and placed in the hands of the constable of the township, who levied it upon the land, which is alleged in the complaint in this action to have consisted of two separate and distinct tracts, and to have then and since been the property of the present plaintiff. The complaint further charges that, after notice, the constable sold the land at public auction to the plaintiff in the action—the defendant corporation here—for the sum of $128.40, and that thereafter, and on the 21st of October, 1882, the constable executed tó the defendant Goldberg a certificate of sale for the land, which was duly recorded in the recorder’s office of the county where the land is situate, and which, it is alleged, “ still remains of record and is a cloud upon plaintiff’s title and if not removed would involve him in litigation and might cause the loss of his said property.” It is also charged in the complaint that the 9th of September, 1882, was a legal holiday, and, further, that the constable levied upon and advertised the land for sale as separate and distinct parcels, but nevertheless sold the same in one body, for which reason plaintiff here moved the justice of the peace to set aside the sale, but his motion in that behalf was denied.