Griffiths v. Hammon

• Decision Date: 08 February 1977
• Docket Number: No. 14553,14553
• Citation: 560 P.2d 1375
• Parties: Sterling GRIFFITHS and Donna Griffiths, his wife, Plaintiffs and Respondents, v. Jed HAMMON et al., Defendants and Appellants.
• Court: Utah Supreme Court

Page 1375

560 P.2d 1375

Sterling GRIFFITHS and Donna Griffiths, his wife, Plaintiffs and Respondents, v. Jed HAMMON et al., Defendants and Appellants.

No. 14553.

Supreme Court of Utah.

Feb. 8, 1977.

Lauren N. Beasley and Randy S. Ludlow, of Cotro-Manes, Warr, Fankhauser & Beasley, Salt Lake City, for defendants and appellants.

Michael W. Park, Cedar City, for plaintiffs and respondents.

HALL, Justice:

Plaintiffs were purchasers at a sheriff's sale of a leasehold interest of the defendants which secured a past due indebtedness. Defendants remained in possession as owners during the six-month redemption period and plaintiffs brought an action for rent alleged due.

The matter was set for trial and defendants promptly filed an objection thereto based upon their counsel's inability to appear on the date set because of a previously scheduled appearance in another district court on the same day. There were no law and motion days held from the date of filing of the objection and the trial date and, consequently, the same was never heard. Defendants made no appearance on the trial date and the court thereupon entered their default, determined a reasonable rental value and entered judgment in favor of plaintiffs giving rise to this appeal.

A party is not granted a continuance as a matter of right, but rather as an act of discretion by the court and the inability of counsel to be present at the time set for trial does not necessarily entitle the client to a continuance. ¹

When counsel has made timely objections, given necessary notice, and has made a reasonable effort to have the trial date changed for good cause, courts have held it to be an abuse of discretion not to grant a continuance. ²

Appellants met the requirements as set forth in Peterson and Utah Sand & Gravel Products Corp., supra, and coupled with equity and the basic rights of a party to be heard, the trial court erred in not setting aside the default judgment.

In regard to the merits of the lawsuit, as a matter of law an execution creditor is not generally entitled to rents during the period of redemption. This specific point was ruled upon by this court in Local Realty Co. v. Lindquist, et ux., 96 Utah 297, 85 P.2d 770 (1938), wherein the case of McLaughlin v. Park City Bank, 22 Utah 473, 63 P. 589 was cited and the following quoted therefrom:

'An execution creditor in not entitled to possession and rents of the property levied upon, before sale, and before the time for redemption has expired.'

In Local Realty Co. v. Lindquist, supra, the court further stated:

It is clear and undoubted that the judgment debtor is, in contemplation of law, the owner of the property during the six months allowed for redemption, and that he has a right to its use and occupation.

In this case, however, there may be some particular fact situation or pertinent contractual provision not now in the record that would support an entitlement to the rent claimed.

Reversed and remanded for trial upon the merits.

CROCKETT, MAUGHAN and WILKINS, JJ., concur.

ELLETT, Chief Justice (concurring and dissenting).

I concur in all that is said in the main opinion except as to the last paragraph.

The gratuity--not urged by the respondent--that 'there may be some particular fact situation or pertinent contractual provision not now in the record that would support an entitlement to the rent claimed' is not justified. The law...