Bank of Douglas v. Neel

• Decision Date: 17 June 1926
• Docket Number: Civil 2489
• Citation: 247 P. 132,30 Ariz. 375
• Parties: BANK OF DOUGLAS, a Corporation, Appellant, v. ELLEN C. NEEL, WALTER H. NEEL and LOTA NEEL, His Wife, Appellees
• Court: Arizona Supreme Court

247 P. 132

30 Ariz. 375

BANK OF DOUGLAS, a Corporation, Appellant, v. ELLEN C. NEEL, WALTER H. NEEL and LOTA NEEL, His Wife, Appellees

Civil No. 2489

Supreme Court of Arizona

June 17, 1926

APPEAL from a judgment of the Superior Court of the County of Cochise. Albert H. Sames, Judge.

Judgment reversed, with instructions.

Messrs Knapp, Boyle & Pickett, for Appellant.

Mr. W G. Gilmore, for Appellees.

Lockwood J. McAlister, C. J., and Ross, J., concur.

OPINION

Lockwood, J.

On the ninth day of July, 1925, the Bank of Douglas, hereinafter called plaintiff, recovered judgment in the superior court of Cochise county against Ellen C. Neel, Walter H. Neel and Lota Neel, his wife, hereinafter called defendants, in the sum of $ 62,300, with interest at the rate of eight per cent thereon from certain dates specified in the judgment, together with $ 6,230 attorneys' fees, with six per cent interest thereon, and for its costs. The judgment further recited that, to secure the payment of such sums, the defendants had executed a mortgage on certain real and personal property in favor of plaintiff, and it was ordered that the mortgage lien on said property be foreclosed, and that a special execution and order of sale issue, and the property be sold according to law.

On the eleventh day of July, a special execution was issued directing the sale of the mortgaged property to satisfy the judgment aforesaid, and providing that if the property should not sell for enough to satisfy the judgment any balance thereof should be made out of the other property of defendants. The sheriff proceeded to sell the mortgaged property according to law, the personal property being sold July 28th, and the real estate August 10th. On the 23d of July the plaintiff had issued a general execution against the defendants, which was placed in the hands of the sheriff and a levy made thereunder on the same day on certain range cattle of the defendants, not covered by the mortgage. August 10th defendants filed a motion to quash the general execution on the ground that the special execution was still outstanding, and that no return had been made thereon, and that there was no deficiency judgment in the action, either then or when the general execution was issued. August 11th the sheriff made his return on the special execution, such being the earliest day upon which it could have been made properly, showing that after deducting the costs of the sale of the property and applying the balance of the proceeds of the sale on the satisfaction of the judgment, there remained a deficiency on the judgment above set forth of $ 8,953.54.

The motion to quash came on for hearing before the court on the third day of October, and it was ordered that the general execution be quashed and the levy made thereunder set aside and vacated. From said order plaintiff has appealed to this court.

The single assignment of error in effect presents one legal proposition: That the court erred in quashing the general execution and vacating the levy for the reason that at the time the order was made the sheriff's return on the special execution showed a deficiency on the judgment, and, the reason which made the issuance of the general execution irregular having ceased, the latter was of full life and vitality and should have been sustained.

It is admitted to be the general principle of law that, when one execution is outstanding upon a judgment, a second one may not be properly issued, for the reason that until the first writ be returned it cannot be said there will not be satisfaction in full thereunder, and therefore the second execution will be quashed on motion. It is contended, however, by plaintiff that there is an exception to this rule, to the effect that even though a second execution be erroneously issued, it is not absolutely void, but merely voidable, and if when a motion to quash the second is passed on the reason which would have prevented its original issuance has ceased, and it would then be proper to issue it, the court should uphold it.

In order to determine this question it will be necessary to review to some extent the statutes of Arizona relating to judgments on foreclosure of a mortgage, the docketing thereof, and the method of proceeding thereunder. We quote from the pertinent sections of the Civil Code of 1913:

Paragraph 554 reads as follows:

"554. Judgments for the foreclosure of mortgages and other liens shall be that the plaintiff recover his debt, damages and costs, with a foreclosure of the plaintiff's lien on the property subject thereto, and (except in judgments against executors, administrators and guardians) that a special execution shall issue to the sheriff or any constable of the county where such property may be, directing him to seize and sell the same as under execution, in satisfaction of the judgment; and if the property cannot be found, or if the proceeds of such sale be insufficient to satisfy the judgment, then to make the money, or any balance thereof remaining unpaid out of any other property of the defendant, as in case of ordinary executions."

Paragraph 4116 provides:

"4116. When a mortgage or deed of trust is foreclosed, the court shall render judgment for the entire amount found to be due, and must direct the mortgaged property, or so much thereof as is necessary, to be sold to satisfy the same, with interest and costs. An execution shall issue accordingly, and the sale thereunder shall be subject to redemption as in cases of sale under execution."

After the rendition of judgment it is the duty of the clerk of the court to docket such judgment under the provisions of paragraph 3630, quoted below:

"3630. At the time of entering judgment in the superior court of any county of this state,...