Hill v. Joseph

• Decision Date: 05 October 1937
• Docket Number: 6462
• Parties: EMERSON HILL and MARGARET HILL, His Wife, Respondents, v. ERNEST JOSEPH, in His Trust Capacity as Executor of the Last Will and Testament of REUBEN A. JOSEPH, Deceased, Appellant
• Court: Idaho Supreme Court

72 P.2d 283

58 Idaho 267

EMERSON HILL and MARGARET HILL, His Wife, Respondents, v. ERNEST JOSEPH, in His Trust Capacity as Executor of the Last Will and Testament of REUBEN A. JOSEPH, Deceased, Appellant

No. 6462

Supreme Court of Idaho

October 5, 1937

EXECUTION-DEATH OF CREDITOR AFTER ISSUANCE OF WRIT.

1. An execution is not abated or suspended on judgment creditor's death after issuance of writ; statute authorizing issuance or enforcement of execution after judgment creditor's death on his executor's application being inapplicable to execution issued during judgment creditor's lifetime. (I. C. A., secs. 8-106, 8-301, 15-616, 30-1713.)

2. A sheriff has authority to execute and return execution directed to him and make any entry authorized by law thereon until it is lawfully withdrawn from his possession or direction given by authorized person to suspend progress of execution.

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Guy Stevens, Judge.

Action to vacate sheriff's sale and quiet title. Judgment for plaintiffs. Reversed and remanded with instructions.

Reversed and remanded with instructions. Cost awarded to appellant. Petition for rehearing denied.

E. H Casterlin, for Appellant.

If plaintiff dies after execution issued, the execution does not abate but the sheriff may proceed. (23 C. J., p. 384; Buckner v. Terrill, Litt, Sel. Cas. (Ky.) 29, 12 Am Dec. 269; Freeman on Void Judicial Sales, sec. 24 (a); Freeman on Executions, 3d ed., sec. 37; Rorer on Judicial Sales, 2d ed., sec. 832.)

If an execution is issued during plaintiff's lifetime and placed in the hands of the sheriff it must be executed if it be regular on its face and issued by competent authority. (Secs. 8-301, 30-1713, I. C. A.; Roth v. Duvall, 1 Idaho 149; Peterson v. Merritt, 25 Idaho 324, 137 P 526.)

If the plaintiff die before execution issued, then execution shall issue and may be enforced thereafter only by his executor or administrator. (Secs. 15-616, 8-106, I. C. A.)

L. E. Glennon and F. A. McCall, for Respondents.

Section 8-106, I. C. A., provides:

"Execution after death. Notwithstanding the death of a party after the judgment, execution thereon may be issued, or it may be enforced as follows: 1. In the case of the death of the judgment creditor, upon the application of his executor or administrator or successor in interest. . . ."

At common law, an execution could not be issued after the death of the judgment creditor until his personal representatives had revived the judgment. This rule has been modified by statute in most jurisdictions, and particularly in the state of Idaho.

It is quite universally held that where the practice has been prescribed by statute, the terms of the statute must be complied with and failure to do so results in a void sale. (23 C. J. 380, sec. 144; Dunham v. Bentley, 103 Iowa 136, 72 N.W. 437; Stewart v. Nuckols, 15 Ala. 225, 50 Am. Dec. 127; Smith v. Alexander, 80 Ala. 251.)

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

OPINION

BUDGE, J.

--July 11, 1929, Rueben A. Joseph secured a money judgment against Emerson Hill and on June 27, 1934, the attorney for Joseph caused execution to issue and to be delivered to the sheriff. The sheriff, on July 2, 1934, under said execution, levied on certain real property of Hill and noticed the real estate for sale, fixing the date of sale August 16, 1934. On August 9, 1934, after judgment, issue of execution, levy, and notice of sale, but before the sale, Reuben A. Joseph died testate in the state of Utah and by the terms of his will appellant Ernest Joseph, of Beaver, Utah was named executor. At the time fixed for the execution sale, August 16, no bidder being present, the sale was postponed until August 21, 1934, at which time John H. Padgham as attorney for Ernest Joseph bid in the property. Appellant made no application to the court or the clerk thereof of any nature with reference to the execution following the death of Reuben A. Joseph. The will of decedent was not admitted to probate in Idaho until February 25, 1935, more than six months following the date of the sale.

The instant action was prosecuted by respondents Emerson Hill and Margaret Hill to vacate the sheriff's sale, above referred to, and to quiet title to the real property. The case was tried to the court; findings of fact and conclusions of law were made and entered; and a decree was entered adjudging that the execution sale, the certificate of sale and the sheriff's deed issued pursuant thereto, were null and void, and canceling the certificate and deed. This appeal is taken from the judgment, appellant's four assignments of error raising the question of whether or not the judgment is sustained by the judgment roll.

The question presented in effect is whether an execution issued during the lifetime of the judgment creditor abates upon his death. It appears that all proceedings had with respect to the execution sale of the real estate involved, down to the time of the death of Reuben A. Joseph, the judgment creditor,--that is until immediately preceding the actual sale,--are not questioned, but respondents urge that I. C. A., sec. 8-106, directs that in case of the death of the judgment creditor, an execution may be enforced only after an application by his executor or administrator or successor in interest, and that it is mandatory that such an application be made.

Respondents' interpretation of I. C. A., sec. 8 106, is that it directs:

". . . . in case of the death of the judgment creditor, an execution may be issued or may be enforced in a certain manner."

That portion of I. C. A., sec. 8-106, pertinent herein provides as follows:

"Notwithstanding the death of a party after the judgment, execution thereon may be issued, or it may be enforced as follows:

"1. In the case of the death of the judgment creditor, upon the application of his executor or administrator or successor in interest."

Whatever construction be placed upon I. C. A., sec. 8-106, it does not appear reasonable or logical to hold that where execution has been issued, handed to the sheriff, the levy made and the property noticed for sale that I. C. A., sec. 8-106, has any application.

It will be remembered that it is conceded that all proceedings had with respect to the execution sale were regular down to the actual sale. That is, there was a valid judgment, execution had regularly issued, had been placed in the hands of the sheriff, the levy had been made and the property was noticed for sale, all prior to the death of the judgment creditor. There is no question of gross sacrifice of the property, fraud, overreaching or other irregularity in the proceedings had. The only question is whether or not the execution abated or was suspended upon the death of the judgment creditor.

It is provided by I. C. A., sec. 15-616, that:

"When any judgment has been rendered for or against the testator or intestate in his lifetime, no execution shall issue thereon after his death, except as provided in section 8-106. . . ."

The foregoing section does not in any way provide or tend to provide that the provisions of I. C. A., sec. 8-106, shall govern where an execution has issued prior to the death of the judgment creditor. I. C. A., sec. 8-301, a part of Title 8, chapter 3, I. C. A., dealing with "Levy and Sale under Execution," provides in part:

"The sheriff must execute the writ (execution) against the property of the judgment debtor by levying on a sufficient...