Freeman v. Wintroath Pumps-Division of Worthington Corp.

• Decision Date: 09 October 1970
• Docket Number: No. 2,PUMPS--DIVISION,CA-CIV,2
• Citation: Freeman v. Wintroath Pumps-Division of Worthington Corp., 475 P.2d 274, 13 Ariz.App. 182 (Ariz. App. 1970)
• Parties: Janice FREEMAN, Appellant, v. WINTROATHOF WORTHINGTON CORPORATION, a Delaware corporation, Appellee. 797.
• Court: Arizona Court of Appeals

Page 274

475 P.2d 274

13 Ariz.App. 182

Janice FREEMAN, Appellant, v.WINTROATH PUMPS--DIVISION OF WORTHINGTON CORPORATION, a Delaware corporation, Appellee.

No. 2 CA-CIV 797.

Court of Appeals of Arizona, Division 2.

Oct. 9, 1970.

Rehearing Denied Nov. 2, 1970.

Review Denied Jan. 5, 1971.

J. Lavell Harper, Casa Grande, for appellant.

Elmer C. Coker, Phoenix, for appellee.

HOWARD, Chief Judge.

Appellant, Janice Freeman, is an heir of the estate of Henry and Rena Dixon, husband and wife, deceased.In 1965, pursuant to a writ and stipulation by Henry and Rena Dixon and the appellee, a judgment was entered in favor of the appellee and against the Dixons in the sum of $12,108.40.A certified copy of this judgment was recorded on January 19, 1965 in Docket 406, page 145 in the office of the Pinal County Recorder, Pinal County, Arizona.On March 1, 1965, there was entered a partial satisfaction of the judgment in the sum of $6,054.20.

Rena Dixon died on December 26, 1965.Her husband, Henry Dixon, received letters testamentary on the 31st day of January, 1966, and first notice to creditors was published on the 2nd day of February, 1966.Henry Dixon subsequently died on July 21, 1966.His sister was given letters testamentary on the 17th day of August, 1966.Notice to creditors was published in his estate on the 24th day of August, 1966.

Both estates were then consolidated for probate on the 31st day of October, 1966.No claim was made against either estate by the appellee during the period of time allowed for the presentation of claims.On May 31, 1967, an order confirming the sale of all the real property of the estate of both Rena and Henry Dixon was entered by the court.Pursuant to said order the property was sold and on the 27th day of May, 1967, an order was entered by the court making distribution of the estate to the heirs.

On November 6, 1968, a writ of garnishment was served by the appellee upon Transamerica Title Insurance Company against funds held for the heirs of the estate of Henry and Rena Dixon.On stipulation of counselthe appellant was substituted as a party for the executrix of the Dixon estate.A motion to quash the writ of garnishment was filed by the appellant.The court denied the motion to quash and judgment was entered against the garnishee-defendant, Transamerica Title Insurance Company.

Three issues are presented: Does payment of the judgment by the garnishee-defendant to the appellee make all issues moot?Did the appellant's judgment constitute a lien upon the real property after probate of the estate?Did Wintroath Pumps have a right to garnish the funds of the sale?

MOOTNESS OF APPEAL

The appellee contends that this appeal is moot since no supersedeas bond was posted and the garnishee-defendant has already paid the amount of the judgment to the appellee.Payment was made prior to the expiration of time allowed by the statutes to post a supersedeas bond and give notice of appeal.We do not agree.A moot case is one which seeks to determine an abstract question which does not arise upon existing facts or rights.In J. R. Francis Construction Co. v. Pima County, 1 Ariz.App. 429, 403 P.2d 934(1965), the appellant complained of the awarding of bids to construct a building.Its failure to file a supersedeas bond on appeal made the issue moot since, pending the appeal, the building was completed.A reversal in that case would have been in vain.But this case is different.The purpose of the supersedeas bond is to preserve the status quo.The appellant who fails to post a supersedeas bond runs the risk that upon reversal the funds will have been dissipated.

The rule in Arizona is that even though execution was not issued, the payment of a judgment must be regarded as compulsory.Therefore, this payment does not release errors, nor deprive the payor of his right to appeal.A different result would be reached if payment was to be: By way of compromise and settlement; under an agreement not to appeal; under circumstances leaving only a moot question for determination.Webb v. Crane Co., 52 Ariz. 299, 80 P.2d 698(1938).A fortiori when the payment is by a third person and without the consent of the appellant, such payment will not render the issues moot.4 Am.Jur.2d Appeal and Error § 264.

JUDGMENT LIEN

A.R.S. § 33--961, subsec.B provides:

'An abstract of the judgment of a court, certified by the clerk, shall be filed and recorded in the office of the county recorder in each county where the judgment creditor desires the judgment to become a lien upon the real property of the judgment debtor before the judgment shall become a lien upon or in any manner affect or encumber the real property of the judgment debtor, or any part thereof.The abstract of judgment shall set forth:

1.Title of the court and the action and number of the action.

2.Date of entry of the judgment and the docket record thereof.

3.Names of judgment debtor and judgment creditor.

4.Amount of judgment.

5.Attorney of record for judgment creditor.'

The appellee, instead of recording an abstract of judgment with the county recorder, filed a certified copy of the judgment itself.It is appellant's contention that this does not satisfy the requirements of A.R.S. § 33--961, subsec.B.We do not agree.In addition to creating the judgment lien itself, the purpose of the recording provisions of statutes dealing with money judgments against owners of real estate is to give constructive notice of the judgment lien to subsequent purchasers, encumbrancers and others who may deal with the real estate.Jones v. Parker, 107 N.J.Super. 235, 258 A.2d 26(1969).The argument made by the appellant has been advanced before in the case of Calwell v. Prindle, 19 W.Va. 604(1882), wherein the court stated:

'While there is a difference between an authenticated abstract of a judgment and an authenticated copy of a judgment, still it must be admitted, that an authenticated copy of a judgment contains all the information and more than an authenticated abstract of the judgment, and is in fact more reliable for the clerk to act upon.An authenticated copy of a judgment * * * includes an authenticated abstract, because it contains all such abstract could and more.'

See also, Robbins Investment Company, Inc. v. Robbins, et al., 49 Cal.App.2d 446, 122 P.2d 91(1942).We therefore hold, that a certified copy of judgment which contains all of the information required in A.R.S. § 33--961, subsec.B is for the purposes of such statute an 'abstract of judgment.'

A judgment lien is a right given the judgment lien creditor to have his claim satisfied by the seizure of the land of his judgment debtor.The judgment lien gives the judgment creditor no estate of any kind in the land.It...