
    McKinney & Williams v. Jones.
    Where a motion is made to set aside a sheriff’s return of a sale under execution, notice must bo given to the plaintiff in the execution and to the purchaser at the sale.
    The appearance of a party entitled to notice, after judgment, merely to give notice of appeal is not such an appearance as will dispense with the necessity of notice. (Note 89.)
    Where a defendant moved to set aside a sheriff’s return, and stated in the motion, as it was stated in the return, that the land was sold to A, a question being raised whether A should not have had notice of the motion: Held, That the defendant was estopped by the terms of his motion from contending that as the return was not signed, it did not appear that there was any purchaser.
    Appeal from G-alvestion. The appellee filed his motion'in tlie District Court, to quash the levy and return on an execution issued on a judgment against him iu favor of the appellants.
    The return was as follows: ‘‘Came to hand July 5th, ’49; served same day, on 2 leagues laud, Nos. 20 & 21; advertised for sale on 1st Tuesday, August next,” signed by the officer; after which was tlie following: “August 7th, 1849, sold two leagues of land, as per levy, IT. L. Kinney being the purchaser, best and highest bidder, at two hundred and sixty dollars.” To this there was no signature. In the motion to quasi i the return, it was stated that the land levied oil was sold to H. L. Kinney, as appears by tiie return thereon,” &c. No notice of the motion was given to the plaintiff in execution or to the alleged purchaser. The entry of the judgment of tile court on (.he motion was as follows: “On motion of the defendant, by his attorney, for reasons appearing to the court, it is ordered and adjudged that the levy and return made on tlie ■fieri facias issued on the seveuth day of June, A. D. 1849, in this cause, to Nueces county, be and the same are hereby quashed. Notice of appeal given by plaintiff’s counsel.”
    
      Note 89. — DeWitt v. Monroe, 20 T., 289.
    I?. Hughes, ior appellants.
    I. To say the least, the court had no power to quash without having-Kinney before the court by notice. (Toler & Crosby v. Ayres, 1 Tex. R., 398.)
    II. But the court ought to go still further. The effect of quashing the return on the execution would be to deprive Kinney of one of the muniments of his title; would be in fact trying his title to the property on a mere motion, which we thinlc cannot be done. (Flornay v. Smith, 3 How. Miss. R., 63; Scott & Bose v. Allen, 1 Tex. R.; 3 A. K. Marsh., 151.)
    
      W. Alexander, for appellee.
    I. There is no return (made by the sheriff or his deputy) showing- that any right was acquired under the execution by II. L. Kinney, or by any person whatever.
    II. The only return indorsed is not in conformity with the law. It does not set out the facts. It does not show that there was no personal property found ; that a levy, either actual or constructive, was made ; that three several similar advertisements were posted up at three (and what) public places twenty days before the legal day of sale. Mor does it show the time, place, and manner in which the sale was to have been made. The further indorsement upon the execution is obnoxious to the foregoing objections, and is not signed. It is absolutely void, and cannot be considered by the court.
   WHEELER, J.

The ground mainly relied on for a reversal of the judgment is the want of notice to the purchaser under the execution. We have heretofore decided that such notice is necessary. (Toler et al. v. Ayres, 1 Tex. R., 398.) Such also has been held to bo the law on a similar state of case elsewhere. (3 A. K. Marsh, 154.)

It would seem, on general principles, that the plaintiff in execution ought also to have had notice. The appearance of a party entitled to notice, after judgment, merely to give notice of appeal, has been held not such an appearance as will dispense with the necessity of notice. (Id.) This proceeding-appears to have been conducted to final judgment ex parte, and without notice to any one. This, it is conceived, was irregular and erroneous.

Unless notice were required, the return of process might be quashed for defects which might have been cured by amendment, had an opportunity been afforded by notice to the party in interest.

It is objected by the appellee, that the return of the sale not having been signed by the sheriff, the court cannot know that there was a purchaser to be affected by the judgment. This is answered by the motion to quash, in which the fact of a sale and the name of the purchaser is stated.

The judgment is reversed, and the cause remanded for further proceedings.

Judgment reversed.  