Opinion
April 7, 1930.
1. JUDICIAL NOTICE: Terms of Court. The court takes judicial notice of statutes, and it therefore takes judicial notice that the Eighth Judicial Circuit consists of the city of St. Louis, and that the terms of said court annually are five, and commence on the first Monday of each of the months of February, April, June, October and December.
2. EXECUTION: Return: Second Term. An execution issued out of the circuit court to enforce a judgment is returnable at the second term after its issuance, and the postponement of the return of an execution issued at plaintiff's instance until the second term after its issuance is authorized.
3. ____: Motion to Set Aside Sale: Filed at Return Term. An execution issued out of a division of the Circuit Court of City of St. Louis, on December 12th, was returnable at the April term following, and if the record shows that such division was in session on May 25th it shows that May 25th was a day of the April term, and motions to set aside the execution sale filed on April 16th and 25th were filed at the April term, and at the return term of the execution.
4. ____: ____: ____: Jurisdiction. A motion to set aside an execution sale filed at the return term, in the court and in the proceedings from which the execution emanated, is filed at the proper term, and the court has jurisdiction to entertain a motion to set aside the execution sale filed at any time during the term to which the execution was returnable.
5. PROHIBITION: Return: Verification. The statute (Sec. 2061, R.S. 1919) does not require the return to a writ of prohibition to be verified. Moreover, if it is verified by respondent's attorney, and relator desires to urge that such is an insufficient verification, he should directly attack the return by filing a motion to strike it from the record or by some other appropriate action.
6. JURISDICTION: Alimony: Motion to Modify: Appeal from Order: Execution Sale. Where relator, plaintiff in the divorce suit, caused execution to be issued upon a judgment for unpaid alimony, and defendant thereafter filed a motion to reduce the alimony, which was sustained at the next term, and she took an appeal from the order reducing the alimony, the appeal did not oust the court of all further jurisdiction, and did not oust the court of jurisdiction to set aside the execution sale at a later term to which the writ was returnable. The appeal did not and could not affect the matters involved in the execution sale, made after, but at the same term, the appeal was taken.
7. ____: To Set Aside Execution Sale: Right of Debtor and Creditor: Appeal. It would be a denial of justice to rule that, subsequent to an appeal, a judgment creditor could have execution and sell, but that the judgment debtor could not contest the regularity and validity of the execution sale.
8. ____: Appeal: Stay. Executions on judgments, except those mentioned in Sections 1473 to 1476, Revised Statutes 1919, are not within the rule that an appeal transfers the jurisdiction of a case from the circuit to the appellate court.
9. ____: Application for Change of Venue: Prohibition. The filing of an application for a change of venue does not oust the circuit court of jurisdiction to hear and determine a motion to set aside an execution sale, and prohibition is not the proper procedure to determine the propriety of the action of the court in denying such application.
10. ____: Motion to Set Aside Execution Sale: Parties: Notice. Upon the filing of a motion to set aside an execution sale, notice should be given to all the parties interested — to those who have an interest in the sale and to those who will be prejudiced by setting it aside — including the purchaser of the property sold at the sale and known transferees to whom a purchaser has transferred it; but notice may be waived by appearance, and where a party appears and opposes the motion, he cannot complain that notice was not given to him or to other parties.
11. ____: ____: Notice to Unknown Transferee. In the absence of notice to or knowledge on the part of the judgment debtor and movent in the motion to set aside an execution sale that the property sold at the sale has subsequently been sold by a purchaser to another, such unknown transferee is not entitled to notice of the motion; and unless notice is given to the movent or he has in some way acquired knowledge that the property has been so transferred, the purchasers who appear at the hearing of the motion and oppose it cannot complain that such transferee is not made a party or given notice.
12. ____: ____: Consent of Court. A carte blanche consent, given by the court, after an unverified motion to set aside an execution sale has been filed by the judgment debtor, to the purchasers at the sale, to institute in other courts whatever proceedings they desired to protect themselves, and proceedings instituted by them in other courts involving the same claim of right to the property purchased at the sale, does not affect the jurisdiction of the court to entertain a later verified motion filed at the same return term. Whether the court gave such consent is of no importance, for the court, without the consent of the judgment debtor, could not bind him by such leave.
13. JURISDICTION: Motion to Set Aside Execution Sale: Verification of Motion. A motion to set aside an execution sale is not required by statute to be verified. The statute (Sec. 1675, R.S. 1919) requires a petition to stay, set aside or quash an execution or order of sale to be verified, but that section has no reference to a motion to set aside an execution sale already made.
PROVISIONAL RULE DISCHARGED.
Randolph Laughlin for relators.
(1) Where the petition for prohibition is verified by the oath of two of the relators, who are shown by its allegations to have been personally present at the transactions related therein, and where the return is filed out of time, without leave, and is not verified by the oath of the respondent, but is verified merely as to the belief of an attorney who is shown not to have been personally present at the transactions in dispute, the verified averments of the petition should be taken as true. Where the respondent wishes to raise an issue of veracity he should verify his return by his own oath. A verification of the mere belief of a person who was not present is hearsay and incompetent and is no verification at all. (2) Prohibition is the appropriate remedy. Where a judge is without jurisdiction to make an order, or is exceeding his jurisdiction in making an order, he should be prohibited from making or enforcing such order in the absence of adequate remedy by appeal. State ex rel. Savings Bank v. Hall, 12 S.W.2d 94. (3) Jurisdiction was lost by the appeal. The judgment in the main case, to which the motion was a mere incident, was rendered at the February term, 1929, and the appeal was granted on February 25, 1929, at that same term. Jurisdiction of such main case was thereby transferred to the appellate court, and the circuit court thereupon parted with every vestige of jurisdiction it theretofore had over said case. State ex rel. Bank v. Hall, 12 S.W.2d 91; State ex rel. Patton v. Gates, 143 Mo. 63; Reed v. Bright, 233 Mo. 399; Finley v. Railway Co., 238 Mo. 6; In re Grading Bledsoe Hill, 222 Mo. 604; Burgess v. O'Donohue, 90 Mo. 299. (4) Jurisdiction fails for want of necessary parties. Where the rights of innocent purchasers intervene, they must be made parties and given an opportunity to be heard. McKee v. Logan, 82 Mo. 524 (2); Hobein v. Murphy, 20 Mo. 488 (2); Chouteau v. Nuckolls, 20 Mo. 442; Otterson v. Mfg. Co., 84 Mo. App. 244. An original and independent bill in equity, making such intervening purchasers parties defendant, and giving them opportunity to assert equities in a court of general equity jurisdiction, is the recognized practice in such cases. Spring v. Giefing, 289 S.W. 828; Briant v. Jackson, 99 Mo. 585; Railroad v. Brown, 43 Mo. 249; Curd v. Lackland, 49 Mo. 451; Durfee v. Moran, 57 Mo. 374; Phillips v. Stewart, 59 Mo. 291; Walters v. Herman, 90 Mo. 529; Hardwich v. Hamilton, 121 Mo. 465; Knoop v. Kelsey, 121 Mo. 642. Even in those cases in which the court has undertaken to deal with the rights of purchasers on mere motion it has required, as conditions precedent to the exercise of its jurisdiction: First, That the complaining party "must act at once." Downing v. Still, 43 Mo. 309. Second. That the purchaser must be notified and given his day in court. McKee v. Logan, 82 Mo. 524. Defendant Ford was served with notice of levy on February 23rd. He did nothing. At the same time the sheriff made demand on him to perform his statutory duty, and to furnish the certificate, required for his own protection as well as for the protection of the plaintiff, by Section 1632. He defaulted in that obligation. The sale was held on March 14th, and again he defaulted. The sheriff's execution was returned into court on April 1st, and the sheriff's bills of sale executed on the same day. Thereby, under the doctrine of Downing v. Still, "The rights of third parties intervened," "he suffered the officer to deed to the purchaser" and "his acquiescence is presumed." Again, in McKee v. Logan, 82 Mo. 524, it is said (l.c. 528): "The plaintiff, the defendant and purchaser are all interested and their rights would in no manner be affected by the proceeding unless they had their day in court." Freeman on Ex., sec. 306; 3 Iowa 331, 13 Iowa 461. No notice whatever was given to any of the relators. Laughlin came into court as an amicus curiae, but Laumeier waived no notice, and as to him the jurisdiction sought to be exercised by respondent is clearly and utterly void. McKee v. Logan, 82 Mo. 528. (5) Jurisdiction was lost by lapse of term. The sale was on March 14th, during the February term. The motion over which respondent asserts jurisdiction was not filed until May 25th. The court's jurisdiction over the matters complained of by said motion lapsed with the lapse of the February term, independent of the fact that jurisdiction was ousted by appeal. City of Aurora v. Williams, 146 Mo. 509; McKee v. Logan, 82 Mo. 528; Neiman v. Early, 28 Mo. 475. See, also, State ex rel. v. Hall (Mo.), 12 S.W.2d 795; Butler v. Cantwell (Mo. App.), 287 S.W. 795. In Neiman v. Early, 28 Mo. 475, the court held that "the court had power over the execution of its process until the official return day." The following cases also mention "the return day" as the limit of the jurisdiction of the court: Ray v. Stobbs, 28 Mo. 25; Butler v. Cantwell (Mo. App.), 287 S.W. 795. (6) Jurisdiction was ousted by the affidavit for change of venue, independent of the above propositions, and of each of them. (a) This is not a proceeding for the alteration of a decree of divorce, or in continuation of the original action. It is not before the original Chancellor who tried the case. It does not involve solely the rights of the original parties, but extends to and includes the independent rights of purchasers who are entitled to their day in court and to an opportunity to be heard. Ordinarily an appellate court will not, by prohibition, interfere with a trial court granting a change of venue (State ex rel. Brady v. Evans, 184 Mo. 632), but here is a case where the error cannot be corrected on appeal. The mere sustaining of the motion will immediately give wings to the defendant and to all the assets of the Banner Loan Company, and put it beyond the power of any Missouri court ever to bring them back. This visible and overpowering equity should cause the court to limit the rule in State ex rel. Brady v. Evans, 182 Mo. 632 (2). The true limit should be the rule stated in a long line of cases, State ex rel. St. Charles Savings Bank v. Hall, 12 S.W.2d 795, being the most recent, that where the relator has no adequate remedy by appeal, prohibition will lie. (b) A trial judge often leans, sometimes unconsciously, against one litigant or in favor of another. Litigants should not be permitted to take unconscionable advantage of the frailties of human nature by lying in wait until some favored judge is assigned to the division in which his case is pending, and then sweep into action beyond the power of his adversary to escape by the only door which the law provides for that purpose, to-wit, a change of venue. "The law will not place its judicial officers in a situation where malice or prejudice or ill-will may have the means of making false imputations against them." State v. Gates, 20 Mo. 401, 403. (c) Impartiality is the first duty of a judge. Either interest or bias (even the slightest) disqualifies him and vitiates his action. The supreme law guarantees to all citizens a tribunal for the determination of causes upon whose disinterestedness not only the discarded and assaulted wife, but the whole community, may repose with perfect confidence, and any taint of interest or bias pollutes the fountain head of justice and is a denial of due process under the constitutions of both the Nation and the State. Tunney v. Ohio, 273 U.S. 523; Ex parte Baer, 20 F.2d 912; Jim v. State, 3 Mo. 177; State v. Gates, 20 Mo. 403; State ex rel. v. Slate, 278 Mo. 570; State ex rel. v. Wear, 129 Mo. 619; Fulweiler v. St. Louis, 61 Mo. 479; Fine v. Public Schools, 30 Mo. 166; State v. Davis, 225 S.W. (Mo.), 710; State v. Drew, 213 S.W. (Mo.), 106; State v. Jones, 197 S.W. (Mo.) 158; State v. Davis, 217 S.W. (Mo.) 91; Schmidt v. Railroad, 149 Mo. 269; State v. Alexander, 66 Mo. 163. (d) Even before the constitutional provision was invoked to secure to a citizen the impartial administration of justice, there was respectable authority for the proposition that the mere filing of an affidavit of bias and prejudice rendered the judge incompetent and disqualified him from hearing the case or exercising his judicial powers with respect to it. All acts done after the filing of the affidavit were held to be coram non judice. State v. Bulling, 100 Mo. 87; State v. Shipman, 93 Mo. 147; State v. Hayes, 81 Mo. 574; State v. Shea, 95 Mo. 85; State v. Greenwade, 72 Mo. 298; State v. Brownfield, 83 Mo. 448; Lacy v. Barrett, 75 Mo. 46; Corpenny v. Sedalia, 57 Mo. 88; Barnes v. McMullin, 78 Mo. 260; Dawson v. Dawson, 29 Mo. App. 521; Ex parte Bedard, 106 Mo. 625. (7) Independent prior jurisdiction attached. It appears from the petition (and was admitted in the original suggestions against granting the writ) that the respondent, on May 17, 1929, gave carte blanche to the relator Laughlin to institute in other courts whatever proceeding he saw fit to protect the rights of himself and his associates, and that acting on the leave thus granted the said Laughlin caused another proceeding to be instituted in another division of the circuit court which involves the same claims of right to the disputed stock as are presented by the motion pending before respondent. This motion was not filed until May 25, 1929, and in the meantime the jurisdiction of another court had attached to the res. That jurisdiction having attached by the consent of respondent, has priority and cannot be ousted or divested by him. Davidson v. Hough, 165 Mo. 561; Capitain v. Trust Co., 240 Mo. 480; State ex rel. Terry v. Allen, 308 Mo. 230.
Earl M. Pirkey for respondent.
(1) The return is not required to be verified. It is verified, however, by the customary form of verification of the attorney for relator. This is sufficient and more than the statute requires. (2) State ex rel. St. Charles Savings Bank v. Hall, 12 S.W.2d 94 simply holds that prohibition is the appropriate remedy to prevent a judge from exceeding his jurisdiction, but it does not hold that prohibition will lie on a state of facts such as appear in the case at bar. (3) An appeal transfers all matters involved in the appeal to the appellate court, does not deprive the circuit court of all jurisdiction of every kind and nature over the case. State ex rel. v. Hall, 12 S.W.2d 95. "An appeal was taken. It was a judgment from which an appeal could properly be taken. The term ended, and thereafter the Circuit Court of the City of St. Louis lost every vestige of authority to set aside or modify such judgment." After appeal the trial court may award alimony pending an appeal. An appeal does not interfere with the action of the circuit court in regard to the execution. State ex rel. Patton v. Gates, 143 Mo. 68. (4) Where the purchasers at the execution sale are present and resist the motion to set the sale aside, they cannot be heard to complain of the want of notice to the sheriff and the plaintiff in the execution, and further that where the sheriff has no direct interest in the matter, notice to him is unnecessary. McKee v. Logan, 82 Mo. 524; Ray v. Stobbs, 28 Mo. 37. The relators have never asked to be made parties to the motion to set aside the execution sale. They have contested it. Their attorney has appeared as an amicus curiae. They have asked for prohibition and have done almost everything except making their claims known to the court to which the execution is returnable. They have tried and are trying to contest the motion without submitting themselves to the jurisdiction of the court. The recognized practice is to file a motion to set aside the sheriff's sale of personal property. City of Aurora ex rel. William v. Lindsay, 146 Mo. 514. (5) A motion to set aside an execution sale is timely if filed any time during the return term. Norman v. Eastburn, 230 Mo. 188; State ex rel. v. Wessell, 237 Mo. 602. (6) An application for a change of venue does not oust the court of jurisdiction, but is a matter of error, and if incorrect can only be corrected on appeal. State ex rel. Brady v. Evans, 184 Mo. 632. (7) It is respectfully submitted that the execution was issued on a final judgment of the trial court, unappealed from, and the trial court has the exclusive right to control the process of the court, including the execution Scrutchfield v. Sauter, 119 Mo. 615; Pettus v. Elgin, 11 Mo. 411; Mellier v. Bartlett, 89 Mo. 134; Gilbert v. Benner, 95 Mo. 151.
This is an original proceeding in prohibition to prohibit the respondent, Judge of the Circuit Court of the City of St. Louis, assigned at that time to Division 15, from entertaining, hearing and deciding a motion, filed by Louis E. Ford, to set aside an execution sale as to certain shares of stock, owned by said Ford, in certain corporations. To respondent's return filed, relators filed a reply.
The following facts appear from the pleadings. Respondent was then presiding judge of Division 15 of the Circuit Court of the City of St. Louis. On January 5, 1926, Bertha E. Ford, relator, filed in the Circuit Court of the City of St. Louis her petition for divorce against Louis E. Ford, who entered his appearance. The cause was assigned to Division 15 of said circuit court, then presided over by Honorable Moses Hartmann, Judge. On January 21, 1926, the said court granted Bertha E. Ford a divorce, and awarded her alimony of $225 a month. No appeal was taken. On January 3, 1929, Louis E. Ford filed a motion to modify the decree as to alimony, stating that the alimony was burdensome and beyond his ability to pay, due to financial reverses and a diminished income, and that $175 a month was sufficient to provide for and maintain plaintiff. On a hearing, respondent, as judge of said court, sustained the motion to modify the decree and decreased the monthly award of alimony to $175. On her motion for a new trial being overruled, Bertha E. Ford appealed to the St. Louis Court of Appeals.
It seems that Louis E. Ford, against the protest of Bertha E. Ford, of his own accord and without a modification of the decree, in 1927 and 1928 withheld from payments to her the sum of $50 a month, so that to December 12, 1928, the alimony arrearages aggregated $600. On said day Bertha filed her affidavit for execution. The Sheriff of the City of St. Louis, in obedience to the commands of the execution, levied upon, as the property of Louis E. Ford, all the shares of capital stock owned by him in the Metropolitan Securities Corporation and the St. Louis Used Car Exchange, and, upon notice given, alleged to be adequate, the sheriff sold, on March 14, 1929, said shares of stock for $600 and $25, respectively, and credited it and applied it to costs. Thereupon the sheriff made his return of said execution to the court. On February 23, 1929, prior to the sale, the sheriff notified Louis E. Ford that he had levied on said stock. Bertha E. Ford, and Randolph Laughlin and Laurence D. Honig, her attorneys, purchased all of said stock sold by the sheriff under execution. Laughlin, later for value received, sold fifty shares of the St. Louis Car Exchange stock to H.H. Laumeier. The name of said corporation was changed to the Banner Loan Company. On April 15, 1929, Louis E. Ford paid into court as a tender the sum of $654.35, and requested the surrender of the stock sold. On April 16th said Ford filed a motion to set aside the execution sale, which was not verified, and on May 25th a verified motion was filed by said Ford. On the same day, to-wit, May 25, 1929, relator Laurence D. Honig filed a verified application for a change of venue, averring the bias and prejudice of respondent discovered only that morning, which respondent has not ruled upon, but it is alleged that he has indicated he would overrule it.
The motion to set aside the execution sale avers, first, that the sums for which the shares of stock sold were grossly and fraudulently inadequate and that said sale is a fraud on defendant; second, that Louis E. Ford and Bertha E. Ford were negotiating for settlement and compromise of defendant's liability to plaintiff, and that by the actions of plaintiff's counsel in refusing to accept or reject proposals defendant was lulled into a sense of security and imposed on relative to a sale, and that defendant was unaware of the contemplated sale, excepting as notice might be imputed to him by the posting of notices of sale, which notices were vague, indefinite and defective in that they did not comply with the law in certain respects, unnecessary to detail herein. That defendant tendered to plaintiff's attorney for her the sum of $701.20 in payment of the execution and judgment, which was refused, and that he then tendered and paid same to the sheriff, and later to the clerk.
Other facts submitted by the pleadings will be adverted to in our discussion of the points considered.
I. We take judicial notice of our statutes. Therefore we take judicial notice that the Eighth Judicial Circuit consists of the city of St. Louis (Sec. 2468, R.S. 1919). Also that the Return terms of said circuit court annually are five and Term. commence on the first Monday of each of the months of February, April, June, October and December. [Sec. 2617, R.S. 1919.] Relators' petition for prohibition states that the affidavit for execution was filed on December 12, 1928, and that it was returnable on the first Monday of April next, which was the first day of the April term, 1929. The execution was returnable at the second term after its issuance, and it may be inferred that it was at plaintiff's instance. The postponement of the return of the execution until the second term after its issuance was authorized. [Sec. 1606, R.S. 1919.] The April term, 1929, is thus designated the return term of the execution. The record shows that Division 15 of the Circuit Court of the City of St. Louis was in session on May 25, 1929, which was evidently a day of the April term, 1929. Consequently, the filing of the motions to set aside the execution sale, filed on April 16 and April 25, 1929, respectively, were filed during the April term, 1929, and thus at the return term of the execution.
II. A motion to set aside an execution sale, filed in the court and in the proceedings from which the execution emanated, is a proper and plenary proceeding to that end; for, as is Motion to said in City of Aurora ex rel. v. Lindsay, 146 Mo. Set Aside 509, l.c. 516, 48 S.W. 642, "that court alone had Sale. jurisdiction over its processes and was charged with the duty to see that no injustice was done under color of its writs." However, it is said that, as the sale occurred during the February term of said court, and as the motion to set aside the execution sale was not filed until the April term of said court, the court's jurisdiction over the matters complained of in said motion lapsed with the lapse of the February term of court. We have held that a motion to set aside an execution sale, filed at the return term, was filed at the proper term, and that the court had jurisdiction to entertain a motion filed during the term to which the return was returnable. [Norman v. Eastburn, 230 Mo. 168, l.c. 188, 130 S.W. 276; State ex rel. v. Wessell, 237 Mo. 593, l.c. 602, 141 S.W. 883.] We adhere to our rulings in those regards.
III. Relators complain that the return of respondent to his petition for prohibition is not verified by respondent, but only by the attorney upon his belief, and, consequently, Prohibition: the verified averments of the petition should be Verification taken as true. Our statute (Sec. 2061) does not of Return. require the return to be verified. Moreover, it was verified by respondent's attorney, and if relators desired to take advantage of it as an insufficient verification, they should have directly attacked it by a motion to strike it from the files or by other appropriate action. The non-action of relators renders it subject to our consideration.
IV. Louis E. Ford filed, on January 3, 1929, a motion to modify the decree as to alimony. A hearing was had on the motion and respondent (the court) modified the decree and reduced the alimony from $225 to $175 a month. A motion for a new trial was filed by Bertha E. Ford, and overruled by the court at the February term, 1929. On February 25, 1929, at the February term of said court, Bertha E. Ford appealed from the order reducing the alimony. Relators contend that said appeal ousted respondent's court of all further jurisdiction. They cite State ex rel. v. Hall, 12 S.W.2d 91, to support their position. But, as the execution sale and the execution return both occurred subsequent to the taking of the appeal, it is evident that the appeal did not and could not affect the matters involved in the execution sale. If the appeal ousted the court of jurisdiction to hear the motion to set aside the execution then certainly it ousted the court of jurisdiction over the execution and sale. But neither conclusion follows. It would result in a denial of justice to say that, subsequent to an appeal, a judgment creditor could execute and sell, but that the judgment debtor could not contest the regularity and validity of the execution sale. To deny a court jurisdiction over its processes would result in a denial to a litigant the right to be heard. Moreover, we have held that executions on judgments, except those stated in Sections 1473 to 1476, inclusive, are not within the rule that an appeal transfers the jurisdiction of the case from the circuit to the appellate court. [State ex rel. v. Gates, 143 Mo. 63, 44 S.W. 739.] This contention is disallowed.
V. Relators next aver that the filing of an affidavit for a change of venue ousted respondent's court of jurisdiction to hear and determine the motion to set aside the execution Change of sale. The filing of an application for a change of Venue. venue does not oust the court of jurisdiction. Consequently prohibition is not the proper procedure to determine the propriety of the action of the court in denying application for change of venue. The granting or refusal of the application is addressed to the discretion of the court, and it has the power and jurisdiction to determine the matter whether its conclusion be right or wrong. The refusal to grant the application is a matter of error and exception, and, if the trial court errs, the error is correctible on appeal. We have so held. [State ex rel. v. Evans, 184 Mo. 632, 83 S.W. 447.]
VI. Relators contend that the jurisdiction of Division 15, presided over by Judge Hogan, to hear and determine the motion to set aside the execution sale, failed for want of necessary parties. The pleadings show that Bertha E. Ford and Parties: Laughlin were joint purchasers at the execution sale of Notice. all the shares of stock in the two corporations. Later the shares were apportioned to Bertha E. Ford, Laughlin and Honig. Of the Banner Loan Company stock, Laughlin was apportioned ninety-nine shares. It is averred that, for value, he transferred fifty shares to Laumeier. Notice of the filing of the motion was not served on either Bertha E. Ford, Laughlin, Honig or Laumeier.
Everyone taking title under the process of the court must be understood as taking subject to the power of the court to set aside the proceeding for cause shown (Ray v. Stobbs, 28 Mo. 35). But it is generally held that, on motion to set aside an execution sale, notice must be given to all the parties interested, those who have an interest in the sale and those who will be prejudiced by setting it aside. Therefore relators were entitled to notice. However, notice may be waived by appearance or by failure to object at the proper time. Where a party appears and opposes the motion, he cannot complain that notice was not given to other parties. [23 C.J. p. 684, pars. 677, 678.] Laughlin appeared as amicus curiae to the motion and resisted it, and, in addition, Honig, her attorney, appeared for Bertha E. Ford, and as to said motion and proceeding, filed an affidavit for a change of venue. Therefore Bertha E. Ford, Laughlin and Honig will be held to have waived notice, for they appeared and resisted said motion, which is held tantamount to a notice served on each of them individually.
In the absence of notice to or knowledge on the part of Louis E. Ford that Laughlin transferred fifty shares of stock to Laumeier, Laumeier was not entitled to notice of the filing of the motion to set aside the execution sale. Louis E. Ford, so far as the petition avers and the pleadings show, was not notified that the shares of stock had been transferred or assigned to Laumeier, nor did he have any knowledge thereof. If such notice had been given him, it is evident that relators would have averred it. Relators fail to allege that the corporation books showed a transfer of the stock to Laumeier, and that said books were accessible to Louis E. Ford. Unless he was notified, how could he know of the transfer of the stock, or the name of the person to whom it was transferred? It would subvert justice to hold, under the facts herein, that an unknown transferee or assignee of corporate stock was entitled to notice that a motion to set aside an execution sale, filed at the return term of court, was so filed. We think that Hays v. Cassell, 70 Ill. 669, supports our ruling.
VII. On April 16, 1929, Louis E. Ford filed the motion to set aside the execution sale. This motion was not verified. The petition for prohibition avers that respondent gave Laughlin carte blanche to institute in other courts whatever proceedings he desired to protect the rights of himself and his associates, and that on May 17, 1929, pursuant to the leave thus granted, another proceeding was instituted in another division of said circuit court involving the same claims of right to the disputed stock as are presented by the motion to set aside the execution sale. The contention of relators is that, as jurisdiction attached by consent of respondent, such jurisdiction has priority, especially as Louis E. Ford did not file a verified motion to set aside the execution sale until May 25, 1929. Respondent denied that he gave Laughlin carte blanche to institute any action he desired.
Whether respondent gave Laughlin and relators consent to institute another proceeding relating to the matter comprised in the motion to set aside the execution sale is of no importance, for respondent, without the consent of Louis E. Ford, could not bind said Ford. That issue was not involved in the motion. The court, on the issues before it, could not speak for Ford, so as to give to relators its consent to institute another proceeding.
Moreover, we are unable to find a statutory requirement that the motion to set aside an execution sale must be verified. It is true that Section 1675, Revised Statutes 1919, provides for the verification of a petition to stay, set aside or quash an execution or order of sale, but said section has reference only to the setting aside of an execution or order of sale prior to the sale. It has no reference to a motion to set aside an execution sale. We do not think that the verification of a motion to set aside an execution sale is required. Consequently respondent's court retained jurisdiction.
The provisional rule is discharged. Henwood and Cooley, CC., concur.
The foregoing opinion by DAVIS, C., is adopted as the opinion of the court. All of the judges concur.