Page:Dakota Territory Reports.djvu/53

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1. JURlUDlCTION:. After a cause has been heard in the Supreme Court, and remanded for a new trial, the general appearance entered by appellee or defendant in error, in the court below, and submitting to ifs jurisdiction, by having a trial on the merits, without any objection, is a waiver of any error which might have been committed in the transmission of the decision of the Supreme, to the District Court.

This cause was removed to this court by writ of error, on the grounds of alleged error of the court below in confirming a sherifTs sale. The judgment of confirmation was reversed, and the cause remanded. On a second hearing in the court below the motion to confirm was denied and the sale set aside, after which defendant in error filed his motion for a re-argument of the case in this court. Other facts necessary to a full understanding of the points decided, sufficiently appear from the opinion.

J. D. Boyer and Moody & Hand, for plaintiffs in error.

When lands are sold upon execution, the proceedings of the officer must be all regular, as the law requires, to give title, and must also appear of record. (1 Greenleaf's Ev., §§ 124 and 130; Hilliard Sales, 80, § 65; 12 Johnson, 456; 16 Shepley, 211 and 212; 1 Comstock, 163; 18 Pick., 475; 2 Wall. U. S., 317.) In the case at bar, the irregularity consisted:

1. The appraisers were not all freeholders.

2. They were not sworn as the statute directs, in this: The statute requiring they shall be sworn to appraise the land upon actual view. The oath only requiring them to impartially appraise it. (Laws 1862, § 444; Nash, 627.)

3. No endorsement of "no goods" was made upon the execution prior to the levy upon the lands. (Id. 1862, § 437.)

4. The execution was for $543.23 while the judgment was