Curtis v. Campbell

• Decision Date: 29 September 1983
• Docket Number: No. 14394,14394
• Parties: Robert S. CURTIS, Plaintiff-Respondent, v. Mitt CAMPBELL, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1035

672 P.2d 1035

105 Idaho 705

Robert S. CURTIS, Plaintiff-Respondent, v. Mitt CAMPBELL, Defendant-Appellant.

No. 14394.

Supreme Court of Idaho.

Sept. 29, 1983.

Rehearing Denied Dec. 22, 1983.

John B. Kugler, Pocatello, for defendant-appellant.

Robert S. Curtis, pro se.

SHEPARD, Justice.

This is an appeal from orders of the district court denying appellant Campbell's various motions to quash writs of execution and a writ of assistance. We affirm.

On July 23, 1979, plaintiff Curtis obtained a judgment against Campbell for $9,051.58 plus costs. No appeal was taken from that judgment and no question is raised here regarding its validity or amount. Curtis has only sought to collect that judgment and his patience is finally rewarded. The patience of the district judge has also been exemplary. For the following two years Curtis attempted to obtain satisfaction of the judgment through negotiations and thereafter by obtaining seven successive writs of execution. In March 1981, after previous writs had been either quashed by court order, returned satisfied in part or returned satisfied, the sixth writ of execution was issued claiming Campbell still owed $2,813.73. Pursuant thereto, the sheriff gave notice that Campbell's used mobile home would be sold at public auction. Campbell asserts that the sheriff would not allow him to bid beyond the amount of cash he, Campbell, had on hand and Curtis bid on the mobile home of $600. On June 1, 1981, the court heard Campbell's motion to quash the sixth writ of execution and ruled that Campbell still owed $1,138.69 plus interest, and that if Campbell paid such amount within 30 days, the mobile home, although sold, would be released from the sheriff's levy. Campbell made no such payment.

On July 9, 1981, a seventh writ of execution was issued against Campbell in the amount of $615.19; that amount was garnisheed from Campbell's bank account and $549.39 was paid to Curtis. Thereafter Curtis received a certificate of sale for the mobile home from the sheriff and when Campbell refused to vacate the home, Curtis petitioned the district court for a writ of assistance. Campbell paid $650 into court, moved to declare the sheriff's return void, and moved for entry of satisfaction of the judgment. On October 6, the court ruled that there had been no appeal from his order of June 1, 1981, that Campbell's motions were denied, and that the sums recovered from the garnishment of Campbell's bank account and from the sale of the trailer satisfied the judgment. Forty-two days after the issuance of that order of October 6, this appeal was filed "from post trial motions and orders, including the order dated October 6, 1981 ..." The only matters properly before us are those which were before the district court in its order of October 6, 1981.

We view the order of the court dated June 1, 1981, as the equivalent of an order confirming the execution sale. As such it cured all irregularities in the sale, excepting only jurisdictional defects, and that order was final and appealable. Casa del Rey v. Hart, 31 Wash.App. 532, 643 P.2d 900 (1982). Since no timely appeal was perfected from that order, we consider none of Campbell's assertions regarding irregularities in the execution sale.

Campbell asserts that the sheriff did not make a timely return on the writ of execution dated March 23, 1981, and hence it is void. We disagree. A late return on a writ of execution does not affect the validity of a sale made pursuant to a writ of execution and the provisions regarding a return date are directory and not mandatory. Failure to comply with such provisions does not affect the title of the purchaser at an execution sale, particularly where no intervening third party rights are involved. Gandiago v. Finch, 46 Idaho 657, 270 P. 621 (1928); Inman v. Brown, 59 N.M. 196, 281 P.2d 474 (1955).

Campbell also asserts that because the seventh writ of execution was issued prior to the time there had been a return on the sixth writ, the sixth writ and the sale thereunder are both void. We disagree. A party will not be heard to complain of irregularities in execution proceedings when those irregularities are not prejudicial. Inman v. Brown, supra. See Woodley-Griggs Boiler Repair, Inc. v. Sanders, 626 S.W.2d 410 (Mo.App.1981); Bertonazzi v. Mechanics Nat. Bank, 379 Mass. 920, 400 N.E.2d 867 (1980); Moore v. Dade Glass & Mirror Co., Inc., 357 So.2d 221 (Fla.App.1978). When a writ of execution issues with a still-unreturned prior execution outstanding, the second writ is at most voidable, and a motion to quash should be denied if the matter which caused issuance of the writ to be erroneous or irregular has been removed. Mosher v. Ganz, 42 Ariz. 314, 25 P.2d 555 (1933).

We hold that the court's issuance of the writ of assistance was proper and its order is affirmed. The writ of assistance is an equitable remedy and the power to issue such writ stems from the need of the court to enforce its own decrees. United States Nat. Bank of Oregon v. Chavez, 281 Or. 329, 574 P.2d 647 (1978). The writ of assistance is a common law remedy to place a purchaser of property at a sheriff's sale into possession when that possession is withheld by any party bound by the decree. See Eagle Rock Corp. v. Idamont Hotel Co., 60 Idaho 639, 95 P.2d 838 (1939). The only question to be adjudicated when the propriety of such writ is an issue is "whether applicant has a right, as against the party in possession to use the writ to obtain possession." Id. 60 Idaho at 648, 95 P.2d at 841, and if the party in possession does not have a colorable claim of right to possess the property, the writ should issue. Booth v. Shepherd, 63 Idaho 523, 123 P.2d 422 (1942). We find no question but that the court had the right to enforce its decree and writ of execution and that as between Campbell and Curtis by virtue of the sheriff's sale, the title was held by Curtis.

Although the district court did not err in ordering the entry of satisfaction of judgment, we note that pending this appeal Campbell has remained in possession of the mobile home; he is therefore liable for the reasonable rental value thereof for the period beginning April 3, 1981 and ending when possession is relinquished to Curtis. See Frost v. Eggeman, 638 P.2d 141 (Wyo.1981).

The orders of the district court are affirmed. However, the cause is remanded to the district court for dissolution of the stays heretofore granted and, as noted herein, for a determination of the reasonable rental value of the mobile home during the period indicated and for an additur in favor of Curtis for that amount. Costs to respondent. Since Curtis has appeared in this appeal pro se no attorney fees are allowed.

BAKES, J., concurs.

DONALDSON, C.J., concurs in the result.

HUNTLEY, Justice, dissenting.

The lesson taught by this case is:

"If the majority of an appellate court wishes to affirm 'no matter what'-- The affirmance will issue 'no matter what' "

I join the dissent of Justice Bistline and add my own because the record clearly establishes several reversible errors committed by the trial court in refusing to set aside the mobile home sale, which errors were assigned on appeal.

The majority neither addresses the errors nor justifies its failure to do so.

There are at least four reasons the court erred in refusing to quash the execution on and sale of the motor home:

(1) There can issue but one writ of execution at a time within a single county, and the previous writ had not been returned nor the proceeds of it accounted for at the time the subject writ issued. I.C. § 11-107

(2) The sheriff's levy was not properly made, whether the mobile home be considered real or personal property in that

(a) if real property, six days' notice of sale rather than the required thirty days was given; (b) if personal property, the sheriff neither took the required possession nor utilized the alternative of a sheriff's keeper.

(3) The sheriff improperly refused to permit Campbell to bid an amount in excess of the cash he had with him, thus refusing Campbell a reasonable time to bring the cash payment for a successive bid (30 Am.Jur.2d 664, Executions § 375).

(4) The writ and levy were for an amount in excess of the balance due Curtis.

These four discrepancies (and several others noted by Justice Bistline) both individually and collectively void the levy and sale, thus compelling a reversal with directions to set aside the sale and determine the balance, if any, due from Campbell to Curtis.

BISTLINE, Justice, dissenting.

At one time the Court on releasing an opinion also took on the added task of writing the syllabus. For this one case I am inclined to suggest the following as the syllabus to the opinion which the Court releases this day.

SYLLABUS: A judgment creditor obtained from the clerk a writ of execution addressed to the sheriff and directing the sheriff to make on execution of the writ the sum of $2,813.73. The judgment creditor instructed the sheriff to make said sum by levying upon and selling a skyline mobile home in which the judgment debtor lived. The sheriff, acting in obedience to the judicial process and the said instructions, advertised the mobile home for sale to be held on April 3, 1980, the notice being posted on March 27, 1980. There is no evidence that the sheriff in making levy took the mobile home into his possession as is required by law. The judgment creditor bid $600.00 at the sale and the sheriff eventually gave him a bill of sale to the mobile home. Prior to the sale, and on April 2, the judgment debtor moved to quash the writ on the grounds that it stated a false amount and did not reflect payments made on the judgment. The motion was noticed up for the 13th day of April--which motion was not heard by the district court until the 20th--all of these dates being in April following the posting of the sale notices on the 27th of March. At the hearing the court did not rule on...