Altman v. District Court of Second Judicial Dist. In And for Albany County

• Decision Date: 29 March 1927
• Docket Number: 1428
• Parties: ALTMAN v. DISTRICT COURT OF SECOND JUDICIAL DIST. in and for ALBANY COUNTY et al [*]
• Court: Wyoming Supreme Court

254 P. 691

36 Wyo. 290

ALTMAN v. DISTRICT COURT OF SECOND JUDICIAL DIST. in and for ALBANY COUNTY et al ^[*]

No. 1428

Supreme Court of Wyoming

March 29, 1927

Original proceeding by Henry Altman for prohibition to be directed to the District Court of the Second Judicial District in and for the County of Albany and V. J. Tidball Judge thereof. Writ denied, and alternative writ quashed.

Writ denied.

W. L Walls, for plaintiff.

The order of confirmation of sale was made at a term ending September 2, 1926 and the court had no jurisdiction to vacate the order after the expiration of the term; Boulter v Cook, 32 Wyo. 461; Bronson v. Schulter, 104 U.S. 410. The procedure for the vacation, or modification of judgments is prescribed by statute; 5923-5927 C. S. The proper procedure was not followed; the only ground for modification of the order would be mistakes or omissions of the clerk; the statute, with reference to the confirmation of judicial sales, is Chapter 372, C. S. 1920; the sale was legally made and properly confirmed by the court; the certificate of purchase was assignable; 6007-6014 C. S. There were no irregularities in the conduct of the sale or in its confirmation; usurpation is a proper subject for prohibition; State v. Court, 165 P. 496; People v. Long, 63 P. 321; White v. Court, 58 P. 450; Lane v. Court, 154 P. 200; Keefe v. Court, 16 Wyo. 381; Mau v. Ausherman, 11 Wyo. 410; State v. Court, 5 Wyo. 227; Hogan v. Court, 117 P. 927; Prinn v. Court, 84 P. 786; Mine Co. v. Court, 82 P. 70. Unless jurisdiction to make this character of order is conferred by statute, the court has no jurisdiction to make it.

William C. Kinkead, for defendants.

The only ground urged against the petition to vacate the order of sale is that it was not filed during the term at which the order was made; plaintiff waived objection to the jurisdiction of his person; 5651-5653 C. S. The notice served having sufficed to bring him into court, the court acquired jurisdiction; Burger v. Court, (Cal.) 104 P. 581; State v. Court, 31 Wyo. 413. The writ will not lie except to prevent encroachment; Dobson v. Westheimer, 5 Wyo. 34; State v. Ausherman, 11 Wyo. 410. Writs of prohibition are issued with caution; State v. Court, 31 Wyo. 413. An error in practice affords no ground for the writ; State v. Ausherman, supra. If the court complained of acted within its jurisdiction, though erroneously, the writ will not lie; Board v. Judge, 101 P. 581; Ex parte Gordon, 104 U.S. 515. It cannot be made to serve the purpose of a proceeding to correct errors; Ex parte Ferry Co., 104 U.S. 519. This court will not correct errors, made in practice, by a writ of prohibition; State v. Court, 5 Wyo. 227. Plaintiff has not stated a cause for relief; State v. Zachritz, (Mo.) 65 S.W. 999. Plaintiff did not apply to the court below to correct its error; State v. Poston, supra. The court may correct its own judgment or error after the term, for mistakes of the clerk; 5924 C. S.; or by motion upon reasonable notice; 5926 C. S. The court had jurisdiction to vacate the order; 5927 C. S. Courts have inherent power to correct their records without statutory grant; 15 C. J. 976, 977; Hollister v. Co., (Ia.) 119 N.W. 626; Hardin v. Card, 17 Wyo. 210. Entering default and judgment for plaintiff, when defendant has a demurrer on file, may be corrected at a subsequent term; Follett v. Alexander, (Ohio) 50 N.E. 720. The sale of a homestead, under circumstances shown by this case, cannot be sustained; Bach v. May, (Ill.) 45 N.E. 248. In the sale of the homestead, and retention of proceeds, the sheriff was a trespasser; Costa v. Goldenberg, (Mass.) 154 N.E. 579; Walsh v. Brown, (Mass.) 80 N.E. 465. The confirmation order does not cure the sale; McLanahan v. Goodman, (Pa.) 108 A. 206. It was the sheriff's duty to collect from the purchaser the $ 2,500, representing the homestead exemption, and, having failed to do so, the sale was void; 5977, 5978 C. S. The application to vacate a sale should be made by motion to the court from whence process issued; 23 Cyc. 682; 10 R. C. L. 1320; Woody v. Jameson, (Ida.) 50 P. 1008; State v. Court, (Mont.) 240 P. 667, 671. An execution sale cannot be attacked collaterally unless void; Thomassen v. De Goey, (Ia.) 110 N.W. 581; Jochun v. Cooky, 176 F. 100; Francis v. Sheats, (Ala.) 45 So. 241; Morgan v. Stevens, (Okla.) 223 P. 365; Keyston v. Mudge, (Pa.) 100 A. 526; Humbolt v. March, (Cal.) 68 P. 968. A court may vacate its confirmation order on grounds that would not support an action in equity to vacate it; State v. Court, (Mont.) supra. The court, in modifying its order, relieved against an unlawful imposition; Cross v. Gould, (Mo.) 110 S.W. 672. The homestead exemption right was not waived; Zander v. Scott, 46 N.E. 2. The court properly allowed the unpaid exemption of $ 2,500 as a set-off in making redemption; Sparrow v. Hosack, 40 O. S. 253; 6032 C. S.

W. L. Walls, in reply.

Defendant threatened to exercise jurisdiction when it had no jurisdiction either of the subject-matter or of the person of plaintiff; the case differs from Burger v. Court, (Cal.) 104 P. 581, where jurisdiction of the subject-matter existed; Dobson v. Westheimer, 5 Wyo. 34 sustains plaintiff's contention; a careful examination of the authorities cited by defendant, on the subject of jurisdiction, will show that they do not apply; the right of redemption is a statutory right and not an equitable right; 10 R. C. L. 1344. Judgment creditors may redeem; 6011 C. S. Second judgment creditors may also redeem; 6019 C. S.

BLUME, Chief Justice. POTTER, J., and KIMBALL, J., concur.

OPINION

BLUME, Chief Justice.

Henry Altman, the plaintiff herein, recovered a judgment in the year 1925, against John Schuneman, in the District Court of Albany County. On March 30, 1926, he caused an execution to be issued on his judgment, directed to the sheriff of Laramie County, who levied upon the South Half of Lots 3 and 4, in Block 137 of the original townsite of the city of Cheyenne. On April 2, 1926, and probably before the said levy was made, the plaintiff herein filed his affidavit in said cause, setting forth that the property above mentioned was the homestead of said Schuneman, and that said property was of greater value than $ 2500. Thereafter, and before the sale hereinafter mentioned was made, said property was regularly appraised as required by law at the sum of $ 4500, and on May 7, 1926, it was offered for sale by the sheriff of Laramie County at public auction, and sold to the plaintiff for the sum of $ 3,000. The sale was reported to the District Court of Albany County, and on June 4, 1926, apparently in an ex parte proceeding, an order confirming the said sale was entered pursuant to section 5978, W. C. S. 1920. The march term of the District Court of Albany County ended beginning with the second Monday in September, 1926. Thereafter and on November 22, 1926, Schuneman filed his affidavit and motion or petition in said cause, setting forth the facts in regard to the levy, appraisement and sale of the property aforesaid, as above mentioned, and also stating in substance that he was over the age of sixty years on May 7, 1926, and a married man, and that on the date aforesaid, and for thirty years prior thereto, he and his wife occupied the above mentioned premises as a homestead, as was well known to the plaintiff; that the sum of $ 2500, constituting his homestead exemption, was never paid or offered to be paid to him, and that the statutory provisions in regard to the payment thereof were wholly and purposely disregarded; that on November 3, 1926, he and his wife tendered to the petitioner the sum of $ 500 with interest for the purpose of redeeming said property from the sheriff's sale aforesaid, and demanding a certificate of redemption, which was refused; that the sheriff's sale of said premises was confirmed by the court without disclosing that said premises in fact constituted a homestead. It was accordingly prayed that the sheriff's sale aforesaid and the order confirming the same be set aside and held for naught; that the certificate of purchase of said sale be cancelled, and that the plaintiff Altman be requested to accept the tender above mentioned. Notice of the motion or petition aforesaid was apparently served upon said Altman, who, on November, 26, 1926, filed his objections to the jurisdiction of the court, setting forth, in substance, that the court had no jurisdiction to act upon the motion of Schuneman, for the reason that the March term, 1926, of the District Court of Albany County, had expired before the filing of said motion or petition. The court, after considering these objections, indicated that it would overrule them and proceed to hear and determine the matter involved in the motion or petition of Schuneman and enter an order in conformity with the prayer--the latter contingent, we presume, upon finding the allegations in the motion to be true. Thereupon and before the District Court proceeded further, the plaintiff Altman filed in this court his petition for a writ of prohibition against further action by said District Court in said matter. An alternative writ of prohibition was issued on January 7, 1927, returnable on January 28, 1927. An answer and a reply thereto were filed and the case has been submitted to this court for final disposition.

1. The only question before us is as to whether or not the District Court had jurisdiction to hear and determine the matters involved in the motion or petition aforesaid. Whether or not the allegations contained therein are in fact true, is a point not now before this court. For the purposes of this case, we must assume that the allegations contained in the motion or petition are true, including the alleged facts that the property...