Oakes v. Williams

Citations

• 107 Ill. 154
• 1883 Ill. LEXIS 240

Syllabus

<p>1. Appeal—its effect on the judgment—as to the lien. An appeal from a judgment of the circuit court to the Supreme Court does not vacate the judgment, or destroy its lien on real estate, or its capacity to become a lien on land acquired pending the appeal. Its only effect is to operate as a stay of proceedings to enforce the judgment.</p> <p>2. Judicial sale—execution issued pending an appeal—irregular, but not void. An execution issued upon a judgment of the circuit court pending an appeal to the Supreme Court, is irregular, but not void, and a sale of land thereunder might be set aside on motion by the defendant therein; but if the levy and sale are not set aside in proper time, title to the land sold will pass by the sheriff’s deed.</p> <p>3. Same—irregularities—where to be corrected—and by whom, to be questioned. Irregularities in the sale of land on execution can only be corrected in the court from which the process has issued. If the defendant in execution tates no steps to have the sale set aside for an irregularity, however gross, it can not be questioned by any one else, especially in a collateral proceeding.</p> <p>4. So where an execution was improperly sued.out on a judgment of the circuit court, and levied upon the defendant’s land, and sale thereof made pending an appeal from the judgment, it was held that the proceedings were irregular, and might have been quashed, on motion of the defendant, in the circuit court, but that not having been done, the sale was valid, and passed the defendant’s title to the land to the grantee in the sheriff’s deed, and that the sale could not be questioned by a third person claiming title under the defendant in the execution.</p>