Dorland v. Smith

Vanclief, C. This action was commenced May 13, 1879, in the late district court of the twenty-third judicial district for the city and county of San Francisco, to enforce the lien of a street assessment on a lot on Mission Street, then the property of the defendant. A decree enforcing the lien by sale of the lot was entered January 11, 1881.

On July 11, 1883, and before the issuing of an execution upon this decree, the defendant conveyed the lot to Romain C. De Boom.

On February 28, 1887, the superior court, on motion of plaintiff’s attorney, without notice to De Boom or defendant, made an order directing that execution issue on the decree.

An execution (order of sale) was accordingly issued on March 1, 1887, and on March 26, 1887, the sheriff sold the lot at public auction to plaintiff’s attorney, J. M. Wood, for the sum of $834.43, which was applied to the satisfaction of the assessment and costs.

On April 25, 1890, pursuant to previous notice served on J. M. Wood, Esq., De Boom moved the court to vacate and set aside the order of February 28, 1887, directing that execution issue, and also to set aside the sheriff’s sale of the lot to J. M. Wood, on the grounds that the order was unauthorized and illegal for the reason that more than five years had elapsed between the date of the entry of the judgment and the date of the order, and that the execution and the sheriff’s sale under it were unauthorized and void for the same reason.

This motion was granted. The order of February 28, 1887, was vacated, and the sheriff’s sale to J. M. Wood was set aside.

From this order J. M. Wood alone brings this appeal upon the judgment roll, including a bill of exceptions.

[124]The motion was heard upon the judgment roll, the order of sale and sheriff’s return thereon, the papers on file in the case, and the affidavits of De Boom and J. M. Wood.

The order of February 28, 1887, does not appear in the record, and there is nothing tending to show the ground upon which it was made, except the affidavits of the parties, which state that it was made on the ground that plaintiff had been restrained from enforcing the decree from September 2, 1882, until January 6, 1886. But as to the fact of such restraint, the affidavits are contradictory, that of De Boom denying that plaintiff was restrained at all for any period of time, while that, of appellant simply states that plaintiff was so restrained “ by order of court,” without specifying any particular order.