Bros v. Dorr

• Decision Date: 17 December 1931
• Docket Number: No. 40735.,40735.
• Citation: 239 N.W. 808,213 Iowa 725
• Parties: BRENTON BROS. v. DORR ET AL.
• Court: Iowa Supreme Court

213 Iowa 725

239 N.W. 808

BRENTON BROS.

v.DORR ET AL.

No. 40735.

Supreme Court of Iowa.

Dec. 17, 1931.

Appeal from District Court, Polk County; Loy Ladd, Judge.

This appeal is to review the ruling of the district court on certain motions which will be more specifically referred to in the opinion.

Modified and affirmed.C. E. Hunn and H. S. Hunn, both of Des Moines, and Guy H. Hall, of Dallas Center, for appellants.

Clark, Byers, Hutchinson & Garber, P. M. Hutchinson, and Chas. Hutchinson, all of Des Moines, for appellees.

ALBERT, J.

On the 5th day of June, 1919, Brenton Bros. obtained a judgment in the district court of Polk county, Iowa, against the defendants in the sum of $36,995.53, with interest, attorney fees, and costs. The number of this case was 28151, law 57.

On the 26th day of December, 1919, an action, designated as No. 29326, law 57, was commenced against these same defendants by Charles R. Brenton for $2,000 for rent due on a farm. In this latter case the defendants filed a counterclaim based on an alleged breach of contract between them and Brenton Bros. claiming damages in the sum of $707,750. This latter case has not yet been tried or disposed of.

On September 15, 1930, a general execution was issued on the judgment obtained in the first case, above described, and the sheriff was instructed to levy upon and sell “Any and all right, claim, thing in action and cause of action which John W. Dorr and/or Elizabeth C. Dorr have against Chas. R. Brenton, the Estate of Chas. R. Brenton, Clyde E. Brenton and/or the partnership known as Brenton Bros. and as stated and pleaded in and as a certain counterclaim by and on behalf of the said John W. Dorr and/or Elizabeth C. Dorr in the action now pending in and before the District Court of Iowa in and for Polk County, and described and known as No. 29326 Law, Chas. R. Brenton, Plaintiff v. John W. Dorr and Elizabeth C. Dorr, Defendants.”

On September 16, 1930, execution was levied in the following manner, according to the sheriff's return, which recites:

“I hereby certify that the annexed general execution came into my hands the 16th day of September, 1930, at 10 o'clock A. M., and by virtue thereof on the 16th day of September, 1930, at 4:33 o'clock P. M., I levied on the following described property as the property of said defendants, towit: (Here follows the same description above set out in the instructions to the sheriff).

It (is) hereby levied upon this 16th day of September, 1930, by virtue of a general execution to me directed by the clerk of the district court of Polk County, Iowa, in the case of Brenton Brothers vs. J. W. Dorr and E. C. Dorr, being recorded in Law 57, No. 28151.

The foregoing levy was made by entering upon judgment docket law 59 on page 29326, a docket in the office of the clerk of the district court of Polk county, Iowa, a memorandum of such levy, giving the name of the parties, plaintiff and defendant, the court from which the execution issued and the date and hour of such entry and by signing the same.”

The record does not show that any notice of this levy was served upon either of the defendants. It does show that the statutory notice of the sheriff's sale of this property was served personally upon each of the defendants, and the same notice was published as required by law. This property was appraised at $2,000 in accordance with the statute.

At this point in the proceedings, the defendants appeared and filed a motion to quash the execution and levy, and to stay further proceedings thereunder until such a time as that the counterclaim in the latter case be tried. Due notice of this motion was served on Brenton Bros. and their attorney. Thereupon an affidavit was filed, stating, among other things, that Charles R. Brenton died on the 1st day of September, 1924; that his estate had been administered upon and closed.

The matter of the hearing on this motion to quash, etc., coming on, the plaintiffs filed a motion to strike all of the paragraphs in the first division thereof, which constitute a part of the motion asking that the writ be quashed; and also all of the second division of said motion which asked for a stay of further proceedings, and to set aside and release the levy made thereunder. This motion was resisted, some evidence was taken in relation thereto, and on the 17th of October, 1930, ruling was made thereon. The court sustained the part of the motion to quash and stay execution in so far as to hold: “It is further ordered and adjudged that the defendants' motion to stay execution and the levy made thereunder be and the same is hereby sustained.” This stay was to operate until a trial could be had in case No. 29326, and the merits of that controversy determined. The court then proceeded: “The court does not at this time make any ruling as to that part of the defendants' motion which asks that the execution and levy be quashed and makes no ruling at this time as to the regularity or validity of the execution or the levy thereunder, but expressly reserves a ruling as to this part of said motion for further proceedings as to the same, if it shall be deemed advisable.”

Thereupon, after having taken due exception, the plaintiffs moved for a bond as provided by sections 12527 to 12529, Code 1931, inclusive. This motion was overruled, and appeal was taken.

Vigorous complaint is lodged against the issuance of the stay order above referred to.

In Freeman on Executions (3d Ed.) vol. 1, § 32, it is said: “These stays of execution may be regarded as of three classes, first, those which are ordered by the court in which the judgment was rendered, but not as a result of any appellate proceedings, and which proceed upon the ground that, for some cause, the execution of the judgment ought to be postponed to some subsequent date, or, perhaps, ought not to take place; second, those which are a consequence of, or attend, appellate proceedings; and third, those which result from statutes granting the defendant a further time in which to satisfy the judgment upon his giving certain security therefor. Each court has such general control over its process as enables it to act for the prevention of all abuse thereof.” See, also, 10 R. C. L. p. 1248, § 43; 23 C. J. 522, § 386.

Under the third class above specified, we have statutory provisions section 11706 et seq., Code 1931, which provide for a stay of execution. By complying with the requirements of these sections of the statute, a stay of execution is a matter of absolute right. This class of a stay is not involved in the present case; nor is the question involved as to a stay which is effected by appeal.

[1] The first class of stay marked out by Freeman is one which arises out of and by reason of the supervisory power of the court over its own process, and is available whenever it is necessary to accomplish the ends of justice. 23 C. J. 521, and cases there cited. A stay of this kind is always a discretional matter with the court, and will not be reversed by this court unless the power to issue the same is capriciously exercised or abused. Granger v. Craig, 85 N. Y. 619;Sawin v. Mt. Vernon Bank, 2 R. I. 382; 23 C. J. 528.

If the applicant shows some reason why judgment should not be enforced against him at the present time because of an independent proceedings and to proceed with the execution would impair his equities or render the independent proceedings ineffective, or otherwise prejudice him, the court may grant a reasonable stay of execution and afford him an opportunity to establish his claim and to escape the inequitable use of the writ. Gravett v. Malone, 54 Ala. 19; Ex parte Burrill, 24 Cal. 350;People v. Cloud, 3 Ill. (2 Scam.) 362;Bass v. Chambliss, 9 La. Ann. 376;Wilkson v. State, 12 Mo. 353;Wiggin v. Janvrin, 47 N. H. 295;Starr v. Schuyler, 3 Johns. (N. Y.) 139;Commonwealth v. Magee, 8 Pa. 240, 44 Am. Dec. 509;Steere v. Stafford, 12 R. I. 131;Wotton v. Parsons, 4 McCord (S. C.) 368;U. S. v. McLemore, 4 How. 286, 11 L. Ed. 977;Herrington v. Block, 98 Ga. 236, 25 S. E. 426.

Under the aforesaid recited facts in this case, we reach the conclusion that the court had the inherent power to issue the stay order which it did issue, and did not abuse his discretion in so doing.

It is next insisted that this stay order should not have been issued without requiring the applicant to put up a bond or give security.

[2] We are not operating in this case under the quoted provisions of the Code as to stay orders, but are considering a case where the stay order was issued under the inherent power of the court. It is not necessary in all cases for the judge granting the stay to require security. 23 C. J. 528, and cases there cited in notes 93 and 94. In event a bond is not required, the applying party, before he is entitled to a stay, should show that the opposite party is not prejudiced by the issuance of such stay, and we find that the record in this case does so show. The court did not abuse its discretion in refusing to require a bond on the issuance of the stay.

[3] One of the grounds of the motion to quash the writ and stay sale thereunder was that no notice of the levy was made on either of the defendants. If such notice is necessary, it might be utilized as a basis for staying the sale of the property under the conditions then existing.

Section 11676, Code 1931, provides that debts due a debtor under execution and property of his in the hands of third persons is to be levied on in the manner provided for attaching the same.

Section 12099, Code 1931, provides that, when things in action or debts are levied upon, notice of such levy must be given to the debtor as provided in section 12107.

It is conceded in this case, or at least established by the evidence, that no such notice as required by the two aforesaid sections was ever given to either of the defendants. Hence it must necessarily follow that no valid levy was made on this property, and the court was...