
    Grede vs. Dannenfelser, imp.
    Practice. (1) Setting aside judgment. (2, 3) Setting aside sale on execution.
    
    1. After the lapse of four and a half years from the entry of judgment, the court has no power to set it aside for a mere irregularity — as for want of notice of the taxation of costs, — even where the judgment debtor had no knowledge or notice of its entry until about the time of his application to vacate; but it may set aside a sale upon execution under such judgment, for sufficient cause shown.
    2. Applications to set aside sales on execution for irregularities áre largely addressed to the discretion of the court, but that discretion should be exercised so as to secure the ends of justice; and (with a view to those ends) full weight will sometimes be given to technical irregularities. Allen v. Clarh, 36 Wis., 101.
    3. Plaintiff’s real estate, out of the county where he resided, was sold on execution in 1873, and in 1876 the sheriff executed a deed to the purchaser, without having filed a duplicate certificate of the sale in the proper register’s office; plaintiff had no knowledge of the entry of judgment, or of the execution, levy or sale, until after the issue of the deed; and the, land, which was worth $1,100, was sold for $186, the amount of the judgment debt, including costs. Meld, that the sale should be set aside on plaintiff’s paying the latter amount, with interest at ten per cent.
    APPEAL from tbe Circuit Court for Sheboygan County.
    This action was brought in tbe circuit court for Milwaukee county, in 1870, by Gaspar Grede against Adam Grede and bis wife and Frederick Dannenfelser, to foreclose a mortgage given by tbe first two defendants named. On tbe 13tb of November, 1871, tbe cause having been sent to tbe county court of tbe same county, judgment was there ordered dismissing tbe complaint as to Dannenfelser, with costs. On tbe same day judgment was entered that said Dannenfelser have and receive of tbe plaintiff $141.47. In August, 1873, real estate of tbe plaintiff' in Waukesha county was levied upon and sold to one Schoof under an alleged execution upon such judgment. In June, 1876, plaintiff, upon affidavits, obtained an order requiring Dannenfelser and Behoof to show cause wliv tbe costs inserted in said judgment should not be stricken therefrom, and that portion of said judgment relating to costs vacated, and why said sale should not be set aside, and the sheriff’s deed, issued thereon to Behoof, canceled, etc.
    The material statements of the affidavits upon which this motion was based, and other facts in the case, will appear from the opinion.
    It appears that the notice of taxation of costs in the cause, served upon plaintiff’s attorneys, was not signed by defendants’ attorney of record, but that, by mistake of a clerk, the names of Messrs. Jenkins & Elliott were signed thereto; that Mr. Jenkins had been of counsel in the cause; that his name as such counsel had been signed to the answer therein; that he had appeared as such at an examination of the plaintiff, which he had conducted personally on defendants’ behalf, in the presence of one of plaintiff’s attorneys; and that he had also appeared for the defendants at the trial.
    The cause having, by consent of parties, been transferred to the circuit court for Sheboygan county, and the plaintiff’s motion having been heard there on affidavits filed by the various parties in interest, that court denied the motion; and plaintiff appealed from the order.
    Eor the appellant, a brief was filed by Cotzhausen, Smith, Sylvester dk Scheiber, and the cause was argued orally by F. W. Cotzhausen.
    
    They contended, among other things, 1. That the court should have vacated the insertion of costs in the judgment, the taxation being without notice. Cord v. Southwell, 15 "Wis., 217; Alcerly v. Vilas, 23 id., 629; Gil-martin v. Smith, 4 Sandf. S. C., 684. The notice must be in writing (E. S., ch. 140, sec. 35; Butler v. Mitchell, 17 Wis., 52); and it must be signed by the regular attorney of record (C. C. Eule 2; 1 Burr. Br., 345; Yorks v. Peck, 17 IIow. Pr., 192); and the affidavit of service in this case was of a notice not signed by the defendants’ attorney of record, but by other attorneys. 2. That the court erred in refusing to vacate the pretended sale. It is admitted by respondent that neither the record and files in this case, nor those in the register’s office, contained any allusion to the issuing of an execution, or to any other proceeding subsequent to the entry and docketing of judgment, until about the first of April, 1816, when the respondent applied to the court for leave to file, nunc pro tunc, a duplicate certificate of sale in the register’s office of Waukesha county. But the issue of an execution, the levy and sale thereon, the return thereof, the amount realized, and the balance, if any, remaining due on the judgment, ought to appear of record (Knowlton v. Ray, 4 Wis., 288), and it will not be presumed that such proceedings were had, when the record contains no allusion to them. Kail v. Ayer, 9 Abb., 220; Glafii/n v. Robinhorst, 40 Wis., 482. The court might, indeed, upon satisfactory proofs, amend the record; but so long as such an amendment is not sought and ordered, an execution sale resting in parol, or in documents not in possession of the court, cannot stand on a direct motion like this. Allen v. Ciarle, 36 Wis., 106. In the present case, there was no sufficient legal proof that a proper execution was issued, and the land duly sold, due notice being given, and duplicate certificates duly issued. Moreover, the sale was invalid because a duplicate certificate thereof was not filed; at least it would seem that the filing and recording of this duplicate is an indispensable preliminary to the execution and delivery of a deed. Tay. Stats., 1556-7; Knowlton v. Rap, supra. This record is essential as a notice to the judgment debtor and others of the date of sale, the amount for which the land is sold, and the time when the right of redemption will expire. Mason v. White, 11 Barb., 173; Mascraft v. Van Antwerp, 3 Cow., 334. The force of this objection could not be obviated by filing a certificate in April, 1876, nunc pro tunc. The jurisdiction of the court in such cases extends to bona fide purchasers and their grantees. Kale v. Clauson, 60 N. Y., 339; Sti'ong v. Cation, 1 Wis., 471; Ogilvie v. Richard
      son, 14 id., 157; Same v. Same, 15 id., 594; Corwith v. State Bank, 18 id., 560; Cazet v. Subbell, 36 N. Y., 677; May v. May, 11 Paige, 201.
    Tbe cause was submitted for tbe respondent on tbe brief of Jenkins, Elliott daWvnkler,oio,ovcas,Ci.
    
    They argued, 1. That tbe court properly refused to set aside tbe judgment. (1) If there bad been no notice of taxation of costs, the omission would not have made tbe judgment irregular, but at most would entitle tbe opposite party to a readjustment of costs. Fenton v. Qarliek, 6 Johns., 288; Stimsonv. Muggins, 16 Barb., 658; Maeomber v. Mayor, 17 Abb., 37; Henry v. Bow, 20 How. Pr., 215; Hoffmmgv. Grove, 18 Abb., 14; Champion v. Cong. Soo., 42 Barb., 441; Petrie v. Fitzgerald, 2 Abb. Pr., N. S., 354; Brady v. Mayor, 1 Sandf. S. C., 582; Cord v. South-well, 15 "Wis., 211. (2) Tbe notice in fact given, signed by counsel whose names were signed to the answer, and who bad actively participated in tbe case, to tbe knowledge of plaintiff’s attorneys, was sufficient. (3) If such notice was defective, it was a mere irregularity, which was waived by tbe retention of tbe paper, and by its being acted upon; and plaintiff could not take any advantage of tbe irregularity after tbe lapse of five years. JEtnalns. Co. v. McCormick, 20 Wis., 265; Jenkins v. Esterly, 24 id., 340; Servatius v. Picket, 30 id., 507; London v. Burke, 33 id., 452; Eaton v. Youngs, 36 id., 175; Loomis v. Bice, 37 id., 264; Fornette v. Carmichael, 38 id., 236; Van Fresar v. Coyle, id., 672; Pringle v. Dunn, 39 id., 439; P. <£> B. Paperworks v. Willett, 14 Abb. Pr., 119; Low v. Graydon, id., 444; Lawrence v. Jones, 15 id., 110; Strong v. Strong, 4 Bob., 621; McFvers v. Markler, 1 Johns. Gas., 248; Nichols v. Nichols, 10 Wend., 560. (4) As there was no pretense that tbe costs were not fairly taxed, tbe motion should have been denied, even if made in time. Bo'ivnell v. Gray, 36 Wis., 574; Greve v. Schweitzer, id., 554; Am. B. M., O. S. c& S. Mach. Co. v. Gurnee, 38 id., 533; Salter v. Hilgen, 40 id., 363. (5) Tbe notice was sufficient, at least, to put tbe party on inquiry, and to characterize any delay as laches {/Etna Lns. Go. v. McQormicle, supra), and respondent’s claim, that, having no notice of the judgment, he could move at any time, is not well founded. Parleer v. McAvoy, 36 Wis., 322; Parvis v. Hamilton, 37 id., 87; Am. B. H., 0. 8. c& 8. M. Go. v. Gurnee, supra. (6) There can be no relief against an irregular judgment, unless applied for within a year after its entry. Moulton v. de ma Garty, 6 Nob., 472; Whitehead v. Teeare, 9 How. Pr., 35; Parle, v. Church, 5 id., 381; Cools v. Diclserson, 1 Duer, 687; Van Benthuysen v. Lyle, 8 How. Pr., 312; Amory v. Amory, 3 Abb., N. S., 16. 2. That the court properly refused to set aside the sale. (1) The order to show cause does not show the irregularities complained of (C. C. Nule 22; Baxter v. Arnold, 9 Flow. Pr., 445; Bowman v. Sheldon, 5 Sandf. S. 0.,' 660; Harder v. Harder, 26 Barb., 412; Barlcer v. Oools, 40 id., 254; Lalor v. Fisher, 2 Nob., 669); and this court will presume that the motion was denied on that ground, and will affirm the order. Lewis v. Graham, 16 Abb. Pr., 126; Shipman v. 8hafer, 14 id., 449.’ (2) A Iona fide purchaser is no more chargeable with notice of irregularities by the sheriff, than a stranger ( Wood v. Cha-pin, 3 Hern., 519; Woodv. Moorhouse, 1 Fans., 411, and cases there cited); and it matters not, as respects his rights, whether there be a legal notice of the sale or not (Tay. Stats., 1556, §59; Lawrence v. Speed, 2 Bibb, 401; Whittalcer v. Sumner, 7 Pick., 551; Wheaton v. Sexton, 4 Wheat., 503; Mclntvre v. Lwrham, 7 Fred., 151; Maddox v. Sullivan, 1 Nich. Eq., 4; Natchez v. Minor, 10 S. & M., 246; KiTby v. Haggi/n, 3 J. J. Marsh., 208; Broolcs v. Rooney, 11 Ga., 423; Draper v. Bry-son, 17 Mo., 71; Phillips v. Coffee, 17 Ill., 154), or a return to the execution (Hopping v. Bu/rnam, 2 G. Greene, 39; Webber v. Cox, 6 Mon., 110; State v. Salyers, 19 Ind., 432; Oloud v. El Dorado, 12 Cal., 128; Claris v. Loclswood, 21 ids, 220; Phillips v. Shiffer, 7 Bans., 347), or a filing of the certificate of sale (Jackson v. Voung, 5 Cow., 269). And see, generally, Jaclcson v. Rosevelt, 13 Johns., 97; Wood v. Moorhouse, s-v/pra, affirmed in 45 N. T., 368; Cu/n/ni/nghm% v. Cassidy, 17 id., 276. (3) The motion was properly denied because not made within the time for redemption. Raymond v. PauM, 21 Wis., 531; Stewart v. Marshall, 4 G. Greene, 75.
   Cole, J.

It is very clear that the court had no power to disturb or vacate the judgment when the application therefor was made. The judgment was entered on the 4th day of December, 1871, and the order to show cause why it should not be vacated and the costs therein inserted stricken out, was obtained about four and a half years thereafter. The ground of the application for vacating the judgment was want of notice of the entry of the same, and that there was no proper notice of taxation of costs. It is not very satisfactorily shown to my mind that proper notice of taxation of costs was not given. The objection to the sufficiency of the notice which appears in the record, is a mere technicality at most. But it is sufficient'to say that, under the repeated decisions of this court, the judgment could not be vacated after such a lapse of time for any mere irregularity. Many cases to this point are cited on the brief of respondent’s counsel, which abundantly establish the proposition that the court had lost all power to disturb the judgment.

But whether the affidavits do not present a case for setting aside the sale under the execution, is a different question. The parties to this litigation reside in Milwaukee county, and it appears that real estate in Waukesha county was sold under the execution, August 30, 1873. In March, 1876, the sheriff executed a deed to the purchaser. Various grounds are relied on for setting aside the sale, which we do not deem it necessary to notice in detail. The judgment debtor states in his affidavit, that he had no knowledge whatever of the entry of the judgment, the issuing of the execution, the levy upon and sale of the land, until the 2d of June, 1876, when he was informed by bis tenant tbat the land had been sold and a deed given to the purchaser. He states that the land sold was worth about $1,100; the purchaser bid the land off for the amount due upon the execution, costs, etc., which amounted to $186. It is admitted that the sheriff omitted to file in the office of the register of deeds of Waukesha county a duplicate certificate of sale as required by section 52, ch. 134, E. S.; in fact, no such certificate was filed before the sheriff’s deed was executed; and the question is, Was the failure of the sheriff to file the duplicate certificate of sale in the register’s office such an irregularity, under the circumstances, as will warrant the court in setting aside the sale upon terms? It seems to us that it is.

Applications to set aside sales on execution are doubtless largely addressed to the discretion of the court; but that discretion should be so exercised as to serve the ends of justice and protect the rights of parties. And, for the accomplishment of these objects, weight is often given to technical irregularities in the proceedings, as was done in Allen v. Clark, 36 Wis., 101. There this court affirmed an order setting aside a sale because the execution was not subscribed by the party issuing it, nor by his attorney; deeming it a proper case, upon the facts, for giving full weight to technical defects and irregularities. In the case at bar, the statute required that a duplicate certificate of sale should he filed in the register’s office of the county; and this was important, as well to give the debtor notice that his land had been sold, as to inform him when the time for redemption expired. It seems to us the court below did not attach sufficient importance to that fact, especially when it appeared that the debtor was entirely ignorant that a levy and sale had been made, and when the land was sold for such a very inadequate price. The fact that a sheriff’s deed had been executed to the purchaser, was not a controlling circumstance in the way of setting aside the sale. “ A purchaser at a sheriff’s sale, although a stranger to the judgment or decree, by his purchase submits himself to tbe jurisdiction of tbe court in respect to tbe sale and purchase (Cazet v. Subbell, 36 N. Y., 677; May v. May, 11 Paige, 201).” This is the language of the court in Hale v. Clauson, 60 N. Y., 339-341, which is a strong case in favor of setting aside the sale. See also Corwith v. State Bank of Illinois, 18 Wis., 560.

In tbis case we tbink tbe sale should be set aside upon tbe appellant’s paying tbe amount for wbicb tbe land was sold, together with ten per cent, interest. On complying with these terms, tbe appellant is entitled to have tbe sale set aside.

It follows from these views that so much of tbe order of tbe circuit court as refused to set aside tbe sale must be reversed, and tbe rest of tbe order affirmed.

By the Cowrt. — So ordered.  