McCoy v. Brooks

• Decision Date: 30 March 1905
• Docket Number: Civil 854
• Parties: J. E. McCOY, Appellant, v. J. J. BROOKS, Defendant and Appellee
• Court: Arizona Supreme Court

80 P. 365

9 Ariz. 157

J. E. McCOY, Appellant, v. J. J. BROOKS, Defendant and Appellee

Civil No. 854

Supreme Court of Arizona

March 30, 1905

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. Richard E. Sloan Judge. Affirmed.

The facts are stated in the opinion.

Reese M. Ling, for Appellant.

Ross &amp O'Sullivan, and E. S. Clark, for Appellee.

OPINION

DAVIS J.

-- J C. Forest, as plaintiff, brought an action in the district court of Yavapai County against J. J. Brooks, in which, on November 9, 1903, he recovered a judgment against said defendant for the sum of $273.83 and costs. There had been a writ of garnishment issued in said action and served upon the Bannie Gold Mining and Milling Company, an Arizona corporation. From the answer of the garnishee it appeared that the defendant, Brooks, was the owner of three hundred and forty-seven thousand shares of the capital stock of said company, and on November 11, 1903, the court decreed the sale of the defendant's stock in said company or so much thereof as might be necessary to satisfy the execution under the aforesaid judgment. On November 27, 1903, execution was issued, and in pursuance thereof the sheriff levied upon and gave notice of the sale of said stock. The sale was made on the twelfth day of December, 1903. The sheriff offered the stock as a whole, and sold the entire block of three hundred and forty-seven thousand shares to the appellant, J. E. McCoy, for the sum of three hundred and fifty dollars, that being the highest bid which was received. The amount necessary to satisfy the judgment, interest, and costs at the time was $323.83. The defendant himself was present at the sale, and bid on the stock a sum slightly in excess of this last-named amount. The appellant paid to the officer the amount of his bid, and received from the latter a bill of sale for the said shares of stock. On December 15th -- three days after the execution sale -- the defendant filed a motion to set aside said sale, basing the motion, among other grounds, upon the gross inadequacy of the selling price, and alleged misconduct of the officer who conducted the sale. The motion was supported by affidavits, and counter affidavits were filed in opposition thereto. At the time of filing his motion the defendant tendered into court the full amount of the judgment against him, including interest and costs. In his own affidavit in support of said motion the defendant set forth, among other things, that the said three hundred and forty-seven thousand shares of stock were of the aggregate value of fifty-two thousand and fifty dollars; that he was present at the sale, and offered to pay to the sheriff the amount of the judgment and costs, which the officer announced at the time to be the sum of $323.83; that he also made a bid of three hundred and twenty-seven dollars on the stock, but that the sheriff continued to offer said stock for sale, and knocked off the same to J. E. McCoy at the price of three hundred and fifty dollars; that defendant immediately thereafter, and before any bill of sale was issued to the said McCoy, tendered the sum of three hundred and twenty-seven dollars to the sheriff, who refused to accept it. Affiant further declared that the offer of said stock for sale as a whole had not been at his suggestion, or with his approval. Upon the hearing the court found, from the proofs submitted, that the value of said three hundred and forty-seven thousand shares of stock when sold, on December 12, 1903, was about the sum of fifty-two thousand dollars, and that the price realized at the sale was inadequate, unreasonable,...