Bentley, et al vs. Fraley.
Tripp & Bartlett, for defendants in error.
The land sold was not exempt from execution and sale under the laws of the Territory. (Laws of 1862, p. 299, §§ 1, 2, 3; Ills. Statutes, Vol. 1, 650; 46 Ills., 327; 44 Ibid, 374; 43 Ibid, 232.) The motion was to confirm a sheriffs sale, and the judgment was not in controversy, and it could not be. A judgment cannot be attacked thus indirectly or collaterally. (Ohio Dig., 150, 151, 153, 154.)
Kidder, J.—The defendant in error, claiming that this action is now here, makes a motion for a re-argument of the same.
The proceedings heretofore in relation to the motion, are these: Before the January term of this court in 1871, the defendant had secured a judgment in the District Court against the plaintiffs in error for several hundred dollars, had prayed out his writ of execution thereon, and had delivered it to the sheriff of Yankton county to collect, who, in pursuance thereof, had levied upon and sold the real property of the plaintiffs, or one of them. Pursuant to the Statute of 1862, page 125, Sec. 449, which authorized such proceedings, the defendant made a motion to the court to confirm the sale of the sheriff, and such proceedings were thereupon had, that the sale was by the court confirmed. The plaintiffs excepted to the decision of the court, and brought the case to this court at the January term in 1871, by petition in error, (which was then in accordance with the statutes of this Territory) for revision. At that term a hearing was had and the court reversed the judgment of the court below confirming the sale, and remanded the motion and case to the District Court, which decision was transmitted thereto and entered, on motion of the plaintiffs, among the records thereof. And at the September term of the District Court in 1871, a motion was again made to confirm the sale by this defendant, and on a full hearing on the merits, the motion was overruled and the sale set aside.
The defendant excepted to the decision, appealed to this court and entered his action upon the calendar. And at the January term in 1872, he caused the court, upon his motion,
