Messenger v. Burns

• Decision Date: 20 June 1963
• Docket Number: No. 9232,9232
• Citation: 382 P.2d 913,86 Idaho 26
• Parties: Harry Edward MESSENGER and Olive Messenger, husband and wife, Plaintiffs-Appellants, v. James B. BURNS, Defendant, Thomas O. Lanum, doing business under the firm name and style of Jerome Credit & Adjustment Bureau, Defendant in Intervention, Respondent.
• Court: Idaho Supreme Court

Page 913

382 P.2d 913

86 Idaho 26

Harry Edward MESSENGER and Olive Messenger, husband and wife, Plaintiffs-Appellants, v. James B. BURNS, Defendant, Thomas O. Lanum, doing business under the firm name and style of Jerome Credit & Adjustment Bureau, Defendant in Intervention, Respondent.

No. 9232.

Supreme Court of Idaho.

June 20, 1963.

Rayborn, Rayborn, Rayborn & Webb, Twin Falls, for appellants.

Murphy, Schwartz & Cunningham, Twin Falls, for respondent.

Richards, Haga & Eberle, Boise, amicus curiae.

McFADDEN, Justice.

The central issue of this appeal is the interpretation of S.L.1955, Ch. 45, which amended I.C. § 10-1110 and repealed I.C. § 10-1109. The pertinent portion of I.C. § 10-1110 as amended, involved herein provides:

'A transcript or abstract of any judgment or decree of any court of this state or in a district court of the United States * * * certified by the clerk having custody thereof, shall be filed with the clerk and recorder of any county of this state, who shall immediately file and docket the same as by law provided, and from the time of such filing, and not before, the judgment so filed becomes a lien up (on) all real property of the judgment debtor in the county, not exempt from execution. * * * The transcript or abstract above mentioned shall contain the title of the court and cause and number of action, names of judgment creditors and debtors, time of entry, where entered in judgment book and amount of judgment.'

On January 20, 1961, respondent Thomas O. Lanum, doing business as Jerome Credit and Adjustment Bureau, was awarded a judgment for $2487 in the District Court for Jerome County. This judgment was not delivered to the Clerk of that court until Monday, January 23, 1961. The Clerk (who by statute is also the ex-officio County Recorder) endorsed the judgment as follows:

'No. 4045

District Court

Eleventh Judicial District

County of Jerome, State of Idaho

Filed Jan. 23, 1961, 9:50 A.M.

Charlotte Robertson, Clerk.'

The records of the Jerome County recorder reflect that appellants filed for record a declaration of homestead on January 23, 1961, at 10:20 A.M. Later a writ of execution, based on the Lanum judgment was issued, and Mr. Burns, the sheriff of Jerome County commended sale proceedings of appellants' property described in the homestead declaration. Appellants instituted this action to restrain the sheriff from continuing with the sale and to declare the levy on the real property null and void. A preliminary injunction was issued pending determination of the action, and respondent Lanum intervened in the action. The cause was heard and the trial court determined that the lien of the judgment was valid and prior to appellant's declaration of homestead. Findings of fact, conclusions of law and judgment were entered accordingly. This appeal was perfected from the judgment.

A judgment lien is purely a creature of statute and does not exist in the body of our common law, (Platts v. Pacific First Federal Savings and Loan Association of Tacoma, 62 Idaho 340-347, 111 P.2d 1093); hence the respective rights of appellants and respondents must be adjudicated within the framework of the applicable statute.

The law applicable to the creation of a homestead as found in Title 55, Chapter 10 of the Idaho Code., I.C. § 55-1004 provides:

'The homestead is exempt from execution or forced sale, except as in this title provided.'

I.C. § 55-1005 declares:

'The homestead is subject to execution or forced sale in satisfaction of judgments obtained:

'1. Before the declaration of homestead was filed for record, and which constitute liens upon the premises. (Emphasis added.)

'2. * * *.'

It is appellant's contention that a party seeking to create a judgment lien either 'in county' or 'out of county', must now file a transcript or abstract of the judgment with the County Clerk and Recorder in a manner so that the instrument is shown on the reception book. (§ 1-2413).

Respondent contends that I.C. § 10-1110, as amended, did not change the procedure for creating a judgment lien; or that if a change was contemplated it was only to advance the inception date of the lien from the time of 'docketing' to the time of 'filing' with the clerk of the District Court.

In construing a statute, it is the duty of this court to ascertain the legislative intent, and give effect thereto. In ascertaining this intent, not only must the literal wording of the statute be examined, but also account must be taken of other matters, 'such as the context, the object in view, the evils to be remedied, the history of the times and of the legislation upon the same subject, public policy, contemporaneous construction, and the like.' In re Gem State Academy Bakery, 70 Idaho 531-541, 224 P.2d 529, 535. Generally, effect must be given, if possible, to every word, clause and sentence of a statute. State v. Alkire, 79 Idaho 334, 317 P.2d 341.

Prior to the 1955 amendment, I.C. § 10-1109 and § 10-1110 as then existed, governed the creation of judgment liens. I.C. § 10-1109, (repealed S.L.1955, Ch. 45, Sec. 2) read:

'State and federal court judgments--Lien.--Judgments in district court of this state * * * from the time they are docketed, become liens upon all the real property of the judgment debtor, not exempt from execution, within the county in which the judgment is docketed and the court records kept, owned by such debtor at the time or which he may afterwards acquire, until the lien expires. * * *'

That section governed judgment liens in situations where the debtor's real property was in the same county the judgment was rendered, docketed and court records kept. For convenience, this is referred to as an 'in county' judgment.

I.C. § 10-1110, prior to the 1955 amendment, was applicable to 'out of county' judgments, which are to be considered as judgments from courts of another county. That section provided in part:

'A transcript of the original docket of any judgment in a district court of this state * * * certified by the clerk having custody thereof, may be filed with the clerk of the district court of any other county of this state, who shall immediately file and docket * * * and from the time of such docketing, and not before, the judgment so docketed becomes a lien upon all real property of the judgment debtor in the county, not exempt from execution, owned by him at the time.'

Thus prior to the 1955 enactment, both the 'in county' and 'out of county' judgment liens become perfected only when the clerk entered the judgment in the docket. The 1...