Joy Mfg. Co. v. R. S. McClintock Diamond Drilling Co.

• Decision Date: 20 December 1955
• Docket Number: No. 8256,8256
• Parties: JOY MANUFACTURING COMPANY, Plaintiff-Appellant, Earl Minshall d/b/a The Idaho Diamond Drill & Contracting Company, Defendant-Appellant, v. R. S. McCLINTOCK DIAMOND DRILLING COMPANY, a corporation, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 874

291 P.2d 874

77 Idaho 309

JOY MANUFACTURING COMPANY, Plaintiff-Appellant, Earl Minshall d/b/a The Idaho Diamond Drill & Contracting Company, Defendant-Appellant, v. R. S. McCLINTOCK DIAMOND DRILLING COMPANY, a corporation, Defendant-Respondent.

No. 8256.

Supreme Court of Idaho.

Dec. 20, 1955.

James G. Towles, Kellogg, for appellant Joy Mfg. Co.

James P. Keane, Wallace, for appellant Minshall.

Eugene F. McCann, Wallace, for respondent.

TAYLOR, Chief Justice.

R. S. McClintock Diamond Drilling Company (respondent) commenced an action February 26, 1954, against Earl Minshall d/b/a The Idaho Diamond Drill & Contracting Company (appellant), and levied attachment upon personal property of the defendant. Judgment was entered against the defendant on July 19, 1954. In the district court that case was No. 12105.

March 24, 1954, the Joy Manufacturing Company (appellant) commenced an action against Minshall and the McClintock Company and obtained a judgment against Minshall July 21, 1954, which judgment provided that the Joy company was entitled to prorate in the proceeds of the attached property. This was action No. 12113 in the district court.

Upon a writ of execution issued in case No. 12105, the sheriff noticed the property for sale 'on the 26th day of July, 1954, at 2:00 o'clock P.M., Pacific Standard Time * at public auction at the Seventh Street Entrance to the Shoshone County Courthouse, at Wallace, Idaho'. The property--consisting of numerous items of diamond drilling machinery, equipment, tools and supplies--was listed in 'Exhibit A' attached to the notice. At the foot of the third page of articles itemized appears the following: 'And other miscellaneous tools, equipment and supplies used in and around diamond drilling operations.'

Shoshone County is in the Pacific time zone, but by agreement of the officials of its municipalities the business and affairs of the people of the county are conducted by Mountain Standard Time. At 2:00 o'clock, p. m., Mountain Standard Time the deputy sheriff called the sale. The McClintock company's representative, being the only bidder present, the entire property was sold to that company on a bid of one dollar. At 2:00 o'clock Pacific time (3:00 o'clock Mountain time) debtor Minshall and a representative of the Joy company appeared. The error in time appearing, the first sale was vacated and the property again offered. None of the property was present at the sale. Minshall objected and protested the sale on that ground, and the deputy in charge offered to take any bidders present to the place where the property was stored to enable them to examine it, and advised that the sale would have to be postponed until a car could be procured for transportation. In the meantime, a jeep truck and a Sullivan 22 gas driven diamond drilling machine were sold to the McClintock company--the jeep for $50 subject to a mortgage of $780; the diamond drill for $25. This drill, together with 2,000 feet E drill rods, 1,000 feet A drill rods, one lot miscellaneous supplies, a Sullivan air driven drill, a Worthington air driven pump, 500 feet E drill rods, 500 feet A drill rods, one lot of miscellaneous tools, and 150 feet EX casing, was subject to a mortgage of $1,000 plus some interest. These additional items covered by the mortgage were sold to McClintock company for one dollar.

At four o'clock a car was made available to take bidders to the property. Minshall and the Joy company representative declined to go out to view it. All the rest of the property was then sold to the McClintock company for $500. The representative of the Joy company declined to bid in view of the protest by Minshall and declined to go on the inspection tour, expressing the opinion that the mines where the property was located would be closed before it could be examined. It appears that some of the property was stored at the Star Mine, some at the Hecla and some at a third place. Minshall testified the property would possibly weigh around three or more tons. The attorney for the McClintock company testified that some of the equipment was heavy, bulky and unwieldy, and that it was impractical to bring it to the courthouse.

July 29, 1954, the Joy company filed a motion to vacate the sale on the grounds the property was not within the view of those who attended the sale; that it was not sold in parcels likely to bring the highest prices; and that the sale was noticed with reference to Pacific time rather than Mountain time. This motion was filed in case No. 12113, and was based upon the records and files in both actions. A hearing was had before the court on this motion on August 17, 1954. The Joy company and Minshall appeared in support of the motion and the McClintock company appeared in opposition. After hearing the testimony adduced the motion was denied. This appeal followed.

Respondent has moved to dismiss the appeal on the ground that the motion was made in case No. 12113, and the sale having been had upon execution issued in case No. 12105, the court had no jurisdiction in case...