Eagle Rock Corp. v. Idamont Hotel Co.

• Decision Date: 20 October 1939
• Docket Number: 6703
• Citation: 60 Idaho 639,95 P.2d 838
• Court: Idaho Supreme Court
• Parties: EAGLE ROCK CORPORATION, Substituted as Plaintiff in Place of MOUNTAIN STATES BUILDING & LOAN ASSOCIATION, a Corporation, and FIDELITY INVESTMENT CORPORATION, a Corporation, Respondents and Cross-appellants, v. IDAMONT HOTEL COMPANY, a Corporation, GEORGE A. HUSKINSON, ARTHUR PORTER, HUGH A. WRIGHT, H. E. POOLE, M. C. RIGBY, D. H. CLARK and JOHN BUCKMILLER, Appellants

95 P.2d 838

60 Idaho 639

EAGLE ROCK CORPORATION, Substituted as Plaintiff in Place of MOUNTAIN STATES BUILDING & LOAN ASSOCIATION, a Corporation, and FIDELITY INVESTMENT CORPORATION, a Corporation, Respondents and Cross-appellants, v. IDAMONT HOTEL COMPANY, a Corporation, GEORGE A. HUSKINSON, ARTHUR PORTER, HUGH A. WRIGHT, H. E. POOLE, M. C. RIGBY, D. H. CLARK and JOHN BUCKMILLER, Appellants

No. 6703

Supreme Court of Idaho

October 20, 1939

MORTGAGES-FORECLOSURE SALE-POSSESSION-WRIT OF ASSISTANCE-JURISDICTION OF DISTRICT COURT IN CHAMBERS-REDEMPTION-AMOUNT NECESSARY TO REDEEM.

1. District judge had jurisdiction to grant writ of assistance in foreclosure proceedings in vacation and at chambers, where record contained stipulation by counsel of parties, reduced to writing by a court reporter, consenting to try motion for writ before judge at chambers. (I. C. A sec. 1-901, subds. 13, 16; secs. 1-903, 1-1622.)

2. A "writ of assistance" is a form of process issued by equity court to transfer possession of property, the title or right to which it has previously adjudicated, as a means of enforcing its decree, and is the appropriate remedy to place in possession the purchaser of property at a foreclosure sale, when he is entitled thereto.

3. Upon application for writ of assistance, no question determined by the original decree could be litigated nor can the original case be reviewed, or the decree therein modified, but the sole question to be determined is whether applicant has a right, as against the party in possession, to use the writ to obtain possession.

4. Where, on appeal from judgment of foreclosure of realty mortgage, judgment was conditionally modified by eliminating attorney's fees, judgment was nevertheless a valid and final judgment, and such modification did not authorize the setting aside of foreclosure sale held under judgment.

5. Where mortgagor desires to stay execution of judgment of foreclosure, it is his duty to give an undertaking for such purpose in conformity with statute. (I. C. A., sec. 11-207.)

6. Where no undertaking was given by mortgagors to stay foreclosure proceeding pending appeal, purchasers were entitled to all the rights and title incident to a sale on foreclosure and issuance of sheriff's certificate of sale under a valid and final judgment, and only right or property interest remaining in mortgagors was the right to redeem by compliance with statutory procedure. (I. C. A., sec. 11-207.)

7. Mortgagees, who purchased property at foreclosure sale and secured sheriff's certificate of sale and their assignees, were entitled to writ of assistance to secure possession of property on expiration of redemption period without redemption having been effectuated, where foreclosure sale was under a valid and final judgment, from which mortgagors appealed, but provided no undertaking to stay execution. (I. C. A., sec. 11-207.)

8. Where property was sold to mortgagees on foreclosure sale under valid and final judgment, from which mortgagors appealed but provided no undertaking to stay execution, and foreclosure judgment was modified on appeal by eliminating attorney's fees, mortgagors were not entitled to have foreclosure set aside, where mortgagees after foreclosure sale offered mortgagors opportunity to redeem upon payment of an amount less than amount of judgment as modified.

9. Where purchaser at foreclosure sale has paid taxes on property after sale and issuance of sheriff's certificate, mortgagor was required by statute to include taxes in the amount necessary to redeem. (I. C A., sec. 8-402, as amended by Sess. Laws, 1935, chap. 7, sec 1; chap. 106, sec. 1.)

10. Where property was sold to mortgagees on foreclosure sale under a valid and final judgment, from which mortgagors appealed but provided no undertaking to stay execution, and foreclosure judgment was modified on appeal by eliminating attorney's fees, mortgagors were protected from loss upon redemption by statute providing that mortgagor need not include attorney's fees in amount necessary to redeem unless provisions of statute are complied with. (Sess. Laws, 1935, chap. 36, sec. 4.)

APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. C. J. Taylor, Judge.

Application for writ of assistance. Order granting writ. Affirmed.

Order affirmed. Costs awarded to respondents. Petition for rehearing denied.

W. A. Ricks, for Appellants.

A judge cannot issue a writ of assistance at chambers or in vacation. (Hartsuff v. Huss, 2 Neb. (Unof.) 145, 95 N.W. 1070; Williams v. Sherman, 35 Idaho 169, 205 P. 259, 21 A. L. R. 353.)

It may be stated as a general proposition that a writ of assistance can be issued only by the court which rendered the decree which the writ is designed to enforce. (Williams v. Sherman, supra; 7 C. J. S. 8.)

The granting of a writ of assistance is a judicial act. (Williams v. Sherman, supra; 7 C. J. S. 8.)

A writ of assistance will not issue when the rights of the parties have not been fully adjudicated in the principal suit. (Escritt v. Michaelson, 73 Neb. 634, 103 N.W. 300, 106 N.W. 1016, 10 Ann. Cas. 1039; Williams v. Sherman, supra; Roach v. Clark, 150 Ind. 93, 48 N.E. 796, 65 Am. St. 353; Hayward v. Kinney, 84 Mich. 591, 48 N.W. 170; Urlau v. Ruhe, 73 Neb. 807, 103 N.W. 670, 104 N.W. 1053.)

A writ of assistance will not issue at the instance of or against one whose rights were not adjudicated. It will not be allowed to operate against a party who shows, even prima facie, that he has acquired a new or independent right or title, for the writ relates to and operates upon those rights only which have been determined by the judgment. (Shaffer v. Austin, 68 Kan. 234, 74 P. 1118; Autenreith v. Hessenauer, 43 Cal. 356; Steinbach v. Leese, 27 Cal. 295; Burton v. Lies, 21 Cal. 87; Kirsch v. Kirsch, 113 Cal. 56, 45 P. 164; Langley v. Voll, 54 Cal. 435.)

Since petitioners have elected to stand upon the sale, they must restore to appellants $ 5,000 before they are entitled to possession of the premises. (Yndart v. Den, 125 Cal. 85, 57 P. 761; Hewitt v. Dean, 91 Cal. 617, 28 P. 93, 25 Am. St. 227; Reynolds v. Harris, 14 Cal. 667, 76 Am. Dec. 459; Munson v. Plummer, 58 Iowa 736, 13 N.W. 71.)

It is a principle of law, broken only by a case or two, that a party obtaining through a judgment, before modification, any advantages or benefits, must restore what he got to the other party after the modification. (Reynolds v. Harris, supra; Yndart v. Den, supra; Hewitt v. Dean, supra; Martin v. Victor Mill. & Min. Co., 19 Nev. 197, 9 P. 336; Munson v. Plummer, supra.)

Otto E. McCutcheon and Ralph R. Breshears, for Respondents and Cross-appellants.

The power of the court to issue writs of assistance to enforce its decrees is coextensive with its jurisdiction to determine the rights of the parties. (Sec. 1-705, I. C. A., subd. 3; 4 Am. Jur., p. 440, pars. 2 and 4; Williams v. Sherman, 35 Idaho 169, 205 P. 259, 21 A. L. R. 353; Eagle Rock Corp. v. Idamont Hotel Co., 59 Idaho 413, 85 P. 242.)

Under the statutes the court has jurisdiction to hear in chambers a motion for the issuance of a writ of assistance. (Secs. 1-901, 1-903, 1-1622, subds. 13 and 16, I. C. A.)

Where a judgment for the foreclosure of a mortgage directing the sale of the property is affirmed by an appellate court, except as to the amount of attorney's fees, to which extent the judgment is modified by merely eliminating the amount of attorney's fees allowed, and a remission of judgment and waiver of attorney's fees by the plaintiff in the foreclosure action becomes effective prior to the expiration of the period for redemption, no injury can be shown by the appellant, and the plaintiff in the foreclosure action is entitled to possession after the expiration of the period for redemption. (Secs. 1-205, 11-203, 11-220, I. C. A.; chap. 64, Idaho Sess. Laws, 1937; Eagle Rock Corp. v. Idamont Hotel Co., supra; Sherwood v. Daly, 58 Idaho 744, 78 P.2d 357; Northwestern & Pacific Hypotheekbank v. Nord, 56 Idaho 86, 50 P.2d 4; Hall v. Blackman, 9 Idaho 555, 75 P. 608.)

BUDGE, J. Givens, and Holden, JJ., concur, Ailshie, C. J., and Morgan, J., concur in the conclusion.

OPINION

BUDGE, J.

--The instant action arose from the judgment of foreclosure of a mortgage entered January 19, 1938, the facts of which will be found reported in Eagle Rock Corp. v. Idamont Hotel Co., 59 Idaho 413, 85 P.2d 242, the opinion filed October 4, 1938, on an appeal from the judgment.

On February 9, 1938, an execution in foreclosure was issued and delivered to the sheriff with directions to sell the property described in the decree of foreclosure and order of sale and the property was advertised for sale.

On March 3, 1938, the Idamont Hotel Company took the appeal from the judgment of foreclosure, above referred to, but gave no supersedeas to stay execution.

On March 21, 1938, the sheriff sold the real and personal property described in the mortgage, which was bid in by the Eagle Rock Corporation for the full amount of the judgment entered January 19, 1938, namely: $ 57,819.70, the sheriff returned the execution fully satisfied and issued to the purchaser, Eagle Rock Corporation, sheriff's certificate of sale.

On October 4, 1938, this court rendered its decision in Eagle Rock Corp. v. Idamont Hotel Co., supra, in part as follows:

"The judgment in favor of respondent Eagle Rock Corporation is affirmed, except as with relation to judgment for attorney's fees ($ 4,000.) to which extent the judgment will be modified and the cause remanded to the lower court with instructions to permit respondent Eagle Rock Corporation to introduce proof in support of its allegation 'that it has incurred the expense and liability to pay its attorney herein a reasonable...