Fay v. Harris

Decision Date31 December 1945
Docket Number4752
Citation64 Ariz. 10,164 P.2d 860
PartiesFAY v. HARRIS
CourtArizona Supreme Court

Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.

Affirmed.

Wm. H Westover and A. J. Eddy, both of Yuma, for appellant.

A. Y Moore, of Phoenix, for appellee.

Stanford C. J., and LaPrade and Morgan, JJ., concur.

OPINION

Stanford, C. J.,

This case raises questions largely pertaining to procedure. The facts are: Plaintiff-appellee secured a judgment against defendant-appellant on January 30, 1935, in the superior court of Maricopa County. Partial recoveries were made under various executions. On December 11, 1939, affidavit for a renewal of judgment was filed by plaintiff, pursuant to the provisions of Article 1, Chapter 22, sections 22-101, and 22-102, ACA 1939. The affidavit referred to the judgment as being docketed in "Book 20 of Judgments at page F". The amount of the original judgment and all payments were properly set out in the affidavit. On the face of the affidavit, it appears that plaintiff, in computing the amount due at the date of the affidavit, failed to deduct a payment of $ 91.95 shown to have been made, and also took credit for $ 112 on account of a "Lien, Com.Cred.Co." shown on one of the execution returns. This was obviously an error in the return. Only the right, title and interest of the judgment debtor is sold under execution. Sec. 24-205, ACA 1939. The purchaser is not entitled to an offset because of a lien on the property purchased. Deducting the sum of these two items, $ 203.95, and properly computing interest on the various items as shown in the affidavit on balances due as of the return dates, the amount unpaid on the judgment should have been approximately $ 1,475.46, rather than the amount shown in the affidavit, $ 1,694.49, and $ 16.53 in excess of the amount which defendant claims to be correct, $ 1,458.93. This difference results from the fact that on the information shown on the affidavit interest is to be computed from dates of return rather than from the dates of the various sales.

In April, 1944, while the judgment as renewed was still effective, plaintiff caused a writ of garnishment to be served on The First National Bank of Arizona. The sheriff's return, after reciting the receipt of the writ, states, "and personally served the same on the 18th day of April, A.D.1944 -- The First National Bank of Arizona, a corporation, being the same garnishee named in said Summons, by delivery to R. S. Courts, in person, Assistant Cashier for the First National Bank of Arizona at the County of Maricopa, a true copy of said Writ of Garnishment."

Garnishee answered, acknowledging it was indebted to defendant in the sum of $ 1,040. Defendant thereupon moved to quash the writ of garnishment and set aside the service on the grounds: (1) The affidavit of renewal failed to comply with the requirements of section 22-102, supra, in that the amount shown due was $ 1,694.49, and the exact amount was $ 1,458.93; it fails to show all payments have been credited, and deducts $ 112 actually received, and does not set out the book and page of the judgment docket; the lien of the judgment has expired and the writ of garnishment issued is void; (2) the service is void in that the return shows service only on an assistant cashier, not an official or agent within the provisions of sections 21-313 and 25-206, ACA 1939, relative to service of writs and returns.

Subsequent to the filing, but before the hearing of the foregoing motion, and without first securing an order of the court, an amended return was filed by the sheriff setting out "by delivering to R. S. Courts in person, Assistant Cashier for the First National Bank of Arizona and an Agent of said First National Bank of Arizona, at the principal office of said bank during office hours, in the County of Maricopa, a copy of said Writ of Garnishment * * *".

From a denial of this motion and the judgment against the garnishee, defendant brought this appeal.

We agree with defendant that the provisions of Article 1, Chapter 22, supra, must be followed strictly in order that a judgment may be renewed. The law is well settled as to this. We think, however, that plaintiff did comply with the terms of the statute. Insofar as the affidavit is claimed to be defective in not giving the page of the judgment book, it appears that the clerk of the superior court does not page the judgment book except by alphabetical designation. Thus, a judgment is listed as Book 20 A, Book 20 B, C, and F, as the case may be. Since plaintiff designated the judgment as docketed by the clerk, this is a sufficient and full compliance with the statute.

It is true that plaintiff failed to show the exact balance due through the errors in computation which we have mentioned. However, all of the items of the judgment appeared, all of the credits were set out, the data appeared on the face of the affidavit, from which the exact balance could be determined. Obviously, the final amount set forth in plaintiff's affidavit as the amount due was not correct, but eliminating the charge for $ 112 (patently not proper), deducting the credit of $ 91.95 shown but which was not deducted, and then computing the interest from dates of returns,...

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14 cases
  • Porter v. Porter
    • United States
    • Arizona Supreme Court
    • July 14, 1966
    ...It is well established that only the right, title and interest of a judgment-debtor is sold at an execution sale, Fay v. Harris, 64 Ariz. 10, 164 P.2d 860, and if the sheriff attempts to sell property other than that of the judgment debtor, the sale is void and the purchaser acquires no tit......
  • Fid. Nat'l Fin., Inc. v. Friedman
    • United States
    • U.S. District Court — District of Arizona
    • March 2, 2012
    ...a judgment be renewed.” Triple E. Produce Corp. v. Valencia, 170 Ariz. 375, 824 P.2d 771 (App.1991) (citing, inter alia, Fay v. Harris, 64 Ariz. 10, 164 P.2d 860 (1945)). At the same time, however, “some defects contained in an affidavit may not defeat a renewal of judgment[.]” State ex rel......
  • Simon v. Boccarsi (In re Boccarsi)
    • United States
    • U.S. Bankruptcy Court — Northern District of Illinois
    • December 14, 2017
    ...notice." Triple E. Produce Corp. v. Valencia , 170 Ariz. 375, 824 P.2d 771, 774 (Ariz. Ct. App. 1991) ; see also Fay v. Harris , 64 Ariz. 10, 164 P.2d 860, 861–62 (1945) (finding that failure to "show the exact balance due" did not defeat renewal). Accordingly, the Debtors may remedy the er......
  • Leven v. Frey
    • United States
    • Nevada Supreme Court
    • October 11, 2007
    ...in its origin, it can only be accomplished in the manner and under the conditions prescribed by the statute); Fay v. Harris, 64 Ariz. 10, 164 P.2d 860, 861-62 (1945) (stating that in order to renew a judgment, a creditor must strictly follow the code section setting forth the procedure for ......
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