Butterfield v. Belho Corp.

• Decision Date: 23 December 1966
• Court: California Court of Appeals Court of Appeals
• Parties: Woodrow W. BUTTERFIELD, Plaintiff and Respondent, v. BELHO CORPORATION, Appellant. Wilbert Otto William Tietz et al., Defendants and Respondents. * Civ. 8250.

Page 577

55 Cal.Rptr. 577

247 Cal.App.2d 483

Woodrow W. BUTTERFIELD, Plaintiff and Respondent, v. BELHO CORPORATION, Appellant.

Wilbert Otto William Tietz et al., Defendants and Respondents. ^*

Civ. 8250.

Court of Appeal, Fourth District, Division 1, California.

Dec. 23, 1966.

Rehearing Denied Jan. 16, 1967.

Hearing Denied Feb. 21, 1967.

Dungan, Tobias, Tornay, June & Humphreys, Costa Mesa, for appellant.

[247 Cal.App.2d 484] Ralph G. Pagter, Anaheim, for plaintiff and respondent.

OPINION

FINLEY, Justice pro tem. ^*

Appellant Belho Corporation was not originally a party to this action. It did not become involved as a party until after judgment in the amount of $12,161.55 was entered in favor of plaintiff-respondent Butterfield and against defendants-respondents as judgment debtors. A writ of execution was issued and certain real property Originally belonging to defendants-respondents, but then standing in the name of appellant, was sold to Butterfield at execution sale. Shortly thereafter Butterfield successfully presented a motion to set the sale aside. Appellant prosecutes this appeal as record title holder of the property thus sold, claiming to be aggrieved and that as an aggrieved party, although not a party to the original action, he has a right of appeal.

At the sale, when the bidding was opened, Butterfield speaking through his attorney, offered $1,000. There being no other bids, the property was sold to him for $1,000. The selling officer together with Butterfield and his attorney, then went to the marshal's office to execute the necessary papers. At this point the selling officer sought to clarify what the $1,000 was intended to cover by asking Butterfield if his bid included costs. Butterfield contended his offer was meant to be $1,000 over and above the amount of his judgment. Because of this alleged misunderstanding, which amounts to an irregularity in the sale since there was no meeting of the minds between the bidder and selling officer, Butterfield moved with success to have the sale set aside.

The appeal presents two basic issues:

1. Does a successor to a fee title have standing to appeal from an order setting aside an execution of sale affecting title, even though not a party of record to the original action resulting in the judgment?

2. Did the trial court abuse its discretion in ordering the execution sale vacated?

First Issue:

The answer to the first question begins with an analysis of Code of Civil Procedure, section 938, which states in part: 'Any party aggrieved may appeal * * *.' Ordinarily, if an appellant is not a party of record at the time of judgment or order from which appeal is taken, an appeal is not in order without first filing a motion to vacate the adverse ruling. (Elliott v. Superior Court, 144 Cal. 501, 77 P. 1109; Braun v. Brown, 13 Cal.2d 130, 87 P.2d 1009; Eggert v. Pacific States Savings & Loan Co., 20 Cal.2d 199, 124 P.2d 815; In re Estate of Thomas, 74 Cal.App.2d 389, 168 P.2d 773; Rose v. Rose, 110 Cal.App.2d 812, 243 P.2d 578.) The primary reason for requiring this procedural step is to prevent persons not truly aggrieved, and whose interest in the particular litigation is not clearly established, from processing an appeal. (In re Estate of Sloan, 222 Cal.App.2d 283, 35 Cal.Rptr. 167.)

Appellant argues that when a party is plainly aggrieved by a ruling of the court, its right to a direct appeal should not be denied simply because it did not become a party to the original proceeding. (In re Estate of Sloan, supra, 222 Cal.App.2d 283, 292, 35 Cal.Rptr. 167.)

A test for determining whether a party is aggrieved can be found in the case of Adams v. Woods, 8 Cal. 306, an 1857 case, where the court said, at page 315:

'Would the party have had the thing, if the erroneous judgment had not been given? If the answer be yea, then the person is the 'party aggrieved.' But his right to the thing must be the immediate, and not the remote consequence of the judgment, had it been differently given.'

In Re Estate of Sloan, supra, 222 Cal.App.2d...