Johnson v. Jefferson Standard Life Ins. Co.

• Court: Arizona Court of Appeals
• Writing for the Court: MOLLOY; HATHAWAY, C.J., and KRUCKER
• Citation: Johnson v. Jefferson Standard Life Ins. Co., 429 P.2d 474, 5 Ariz.App. 587 (Ariz. App. 1967)
• Decision Date: 16 June 1967
• Docket Number: No. 2,CA-CIV,2
• Parties: Jack JOHNSON and Betty Johnson, husband and wife, Appellants, v. JEFFERSON STANDARD LIFE INSURANCE COMPANY, Appellee. 340.

Page 474

429 P.2d 474

5 Ariz.App. 587

Jack JOHNSON and Betty Johnson, husband and wife, Appellants, v. JEFFERSON STANDARD LIFE INSURANCE COMPANY, Appellee.

No. 2 CA-CIV 340.

Court of Appeals of Arizona.

June 16, 1967.

Rehearing Denied July 27, 1967.

Review Denied Oct. 3, 1967.

J. Lavell Harper, Casa Grande, for appellants. Evans, Kitchel & Jenckes, by Edward C. LeBeau, Phoenix, for appellee.

MOLLOY, Judge.

This is an appeal from an order of the superior court of Pinal county setting aside a sheriff's sale of certain real property used as a post office in Casa Grande, Arizona. The sale was set aside for the reason that the amount bid and accepted was inadequate. Appellant, the purchaser at the sheriff's sale, raises two arguments on appeal. The first is that the appellee, the judgment-creditor causing the sheriff's sale to be held, was more than eight minutes late in appearing at the sheriff's sale and hence, being negligent, cannot complain that the property sold for less than its full value. The other contention is that the $5,000 bid on property appraised at $73,000 was not unconscionable.

Appellee, on March 16, 1966, as first mortgagee on the property, obtained a foreclosure judgment against one Jung Kim and Bertha G. Jung in the amount of $56,228.00. Appellant Jack Johnson, who had earlier obtained a $5,000 judgment against the Jungs, was a defendant in this foreclosure action. The property was levied upon pursuant to an order of sale and a writ of special execution. The sale of the property was set by the chief civil deputy sheriff of Pinal county for April 25, 1966, at 10 a.m.

Shortly before 10 a.m., on the morning of the 25th of April, the deputy sheriff, several bystanders, and appellant Jack Johnson arrived at the county courthouse. When the attorney for appellee failed to appear in front of the courthouse at 10 a.m., the deputy inquired around the courthouse to see if he had arrived. At approximately eight minutes after the hour, the deputy, at appellant's request, dispensed with the reading of the notice of sale and commenced to accept bids on the property. Appellant bid $5,000, which was accepted by the deputy. While appellant was writing his personal check drawn on the Valley National Bank in Casa Grande, the appellee's counsel arrived prepared to bid on the property the amount of the judgment obtained against the Jungs. The deputy informed him that the property had been sold, that the sale was closed, and that he was accepting appellant's check for the property. Two days later, on April 27, 1966, appellee filed a motion to set aside the sale which was granted by the trial court. At the hearing, there was evidence that the property sold had a value of $73,000.

Appellant initially contends that under general equity law, the trial court was powerless to grant relief to appellee because its lawyer was unexcusably negligent in arriving late at the execution sale, and appellant, who did nothing to bring about this condition, was perfectly justified in bidding $5,000.

The power of a court to set aside an execution sale arises from its inherent power to control its own process, Redman v. White, 85 Ariz. 82, 331 P.2d 1096 (1958); 30 Am.Jur.2d Executions § 711, p. 843. A motion to set aside is addressed to the sound...