McCarthy v. Speed

Citations

• 16 S.D. 584
• 94 N.W. 411
• 1903 S.D. LEXIS 117

Syllabus

<p>1. Where there is no irregularity or defect in the judgment, or in the execution issued thereon, and persons not parties to the action purchase at the sale, the sale will not be set aside on motion, but the remedy is by an action in the proper Court.</p> <p>2. Where the plaintiff in the action is one of the purchasers at the sale, it may be set aside, as to him, on motion.</p> <p>3. Code Civ. Proc. § 5201, provides that, in an action prosecuted or defended by an executor, costs shall be recovered as in an action by and against a person prosecuting or defending in his own right, but such costs may, by the judgment, be chargeable only on the estate, unless the Coyrt shall direct the same to be paid by the plaintiff or defendant personally. Section 5807 of the Probate Code declares that when a judgment is recovered, with costs, against any executor or administrator, he shall be individually liable for such costs, but they must be allowed him in his administration account, unless the suit was prosecuted or defended without just cause. Held, that where the costs are not, by the terms of the judgment, made chargeable on the estate, the executor is personally liable therefor.</p> <p>4. Where, in an action against a party as executor, plaintiff recovers judgment for costs, and causes the individual property of the executor to be sold in satisfaction thereof, the latter may, in his individual capacity, move to have the sale set aside.</p>