Hackin v. Superior Court, Maricopa County

• Decision Date: 22 March 1967
• Docket Number: No. 8886--PR,8886--PR
• Citation: 102 Ariz. 93,425 P.2d 420
• Parties: H. S. HACKIN and Charlotte E. Hackin, his wife, Hackin Plumbing & Heating, Rosalind Gallai, Petitioners, v. SUPERIOR COURT, MARICOPA COUNTY, Honorable George M. Sterling, Judge, L. C. Boies, Sheriff, Respondents, and Pioneer Plumbing Supply Co., an Arizona corporation, Real Party in Interest.
• Court: Arizona Supreme Court

Page 420

425 P.2d 420

102 Ariz. 93

H. S. HACKIN and Charlotte E. Hackin, his wife, Hackin Plumbing & Heating, Rosalind Gallai, Petitioners, v. SUPERIOR COURT, MARICOPA COUNTY, Honorable George M. Sterling, Judge, L. C. Boies, Sheriff, Respondents, and Pioneer Plumbing Supply Co., an Arizona corporation, Real Party in Interest.

No. 8886--PR.

Supreme Court of Arizona, In Banc.

March 22, 1967.

Stewart & Pickrell, by Harry A. Stewart, Jr., Phoenix, for petitioners.

Spector & Johnson, by Bernard L. Bebeau and Albert B. Spector, Phoenix, for respondents.

UDALL, Justice:

This matter is before us by a petition to review the decision of the Court of Appeals reported in 4 Ariz.App. 190, 419 P.2d 94. The Court of Appeals, Division 1, denied a petition in the alternative for a writ of mandamus, a writ of prohibition, or a writ of certiorari.

Briefly, the facts of the case are as follows: Pioneer Plumbing Supply Com pany (hereinafter referred to as Pioneer) was the plaintiff and real party in interest in two suits which were consolidated for trial in the Superior Court of Maricopa County. Pioneer sought damages for breach of contract and also judgment foreclosing a real property mortgage securing a promissory note. Petitioners herein were the parties defendant.

Judgment was entered for Pioneer on June 23, 1966, in both suits. On June 29th, a special execution was issued on the mortgage foreclosure judgment, whereupon a Sheriff's sale was set for July 28, 1966. Petitioners filed a motion for a new trial but it was denied on July 26, 1966. On July 27th petitioners gave notice of appeal from the judgments rendered and posted a cost bond. They also requested the trial judge to stay the Sheriff's sale and to fix a supersedeas bond. The court refused to stay the sale but it did fix the supersedeas bond in the amount of $150,000.

Petitioners applied to the Court of Appeals on July 28th, at an hour prior to the time set for the Sheriff's sale, for extraordinary relief and for an order staying the sale pending the determination of their petition. The appellate court did not stay the Sheriff's sale and it scheduled an informal hearing on the matter at an hour later than the time set for the foreclosure sale. The Sheriff thus conducted the sale as scheduled and the real property was sold to the judgment creditor, Pioneer, for $100,505.61--which being a sum less than the total sum represented by the foreclosure judgment, left a deficiency.

Narrowly stated, the question presented to us for decision is whether the trial court acted beyond its jurisdiction in not entering an order staying the Sheriff's sale and in setting a supersedeas bond pursuant to the provisions of Rule 73(k)(1) rather than Rule 73(k)(2) of the Rules of Civil Procedure, 16 A.R.S., after petitioners had given notice of appeal from the judgments entered and had posted a cost bond.

In Allison v. Chatwin, 99 Ariz. 99, 103, 407 P.2d 69, this Court made clear its view of both the purpose of a supersedeas bond and a lower court's duty with regard thereto:

'The purpose of the supersedeas bond is to afford the party appealing from a lower court order to stay any further proceedings in the cause being appealed until such time as the appeal has been ruled upon by the reviewing court. Therefore, The lower court, upon notice of appeal, should determine as quickly as possible the amount of the supersedeas bond, stay execution for a reasonable time to permit the party appealing to post the bond, and thereby stay and preserve the status quo. Otherwise the effect might be to render nugatory the purpose of the supersedeas bond.' (emphasis added)

In the case at bar, petitioners filed their notice of appeal and at the same time asked the trial court to stay the sale. Under the guidelines set out in Allison, it is manifest that the lower court was required to 'stay execution for a reasonable time' and to 'determine as quickly as possible the...