Mosher v. Ganz, Civil 3312

• Decision Date: 10 October 1933
• Docket Number: Civil 3312
• Citation: 42 Ariz. 314,25 P.2d 555
• Parties: H. L. MOSHER, Appellant, v. ELSIE B. GANZ, Appellee
• Court: Arizona Supreme Court

25 P.2d 555

42 Ariz. 314

H. L. MOSHER, Appellant, v. ELSIE B. GANZ, Appellee

Civil No. 3312

Supreme Court of Arizona

October 10, 1933

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.

Mr John W. Ray, for Appellant.

Mr Henry J. Sullivan, for Appellee.

OPINION

LOCKWOOD, J.

This is an appeal from an order of the superior court of Maricopa county denying a motion to set aside a special execution and a sale made thereunder. The facts of the case are not in dispute and may be briefly stated as follows: Elsie B. Ganz hereinafter called plaintiff, recovered a judgment in the superior court of Maricopa county against H. L. Mosher hereinafter called defendant, providing for the foreclosure of a mortgage on certain real estate. On January 5, 1932, a special execution and order of sale of the mortgaged property was duly issued, in accordance with the statute, and the property sold thereunder to plaintiff. On February 2d the sheriff made return on the special execution showing the sale and full satisfaction of the judgment, a balance under said sale being due defendant. This return, however, was not filed in the clerk's office until after it was amended. On February 18th defendant filed a motion to set aside the sale, which was granted on March 14th. Thereafter and on March 16th a second alias special execution and order of sale was issued. On April 7th the sheriff made an amended return on the first special execution showing that by reason of the order of the court setting aside the sale he returned the execution wholly unsatisfied. On April 29th he filed his return on the alias special execution showing that a sale had been made thereunder and that the judgment was fully satisfied thereby. On September 3d defendant filed her motion to set aside the sale made under the second execution and, this motion being denied by the court, perfected her appeal in due time.

It appears from this recital that the sale on the first execution was set aside by order of the court and that there was not sufficient time remaining for the necessary advertisement for another sale on the first execution until the return day fixed by statute had passed. Section 4214, Rev. Code 1928; chap. 66, Session Laws 1929. The proper course under these circumstances would have been for the sheriff to make and file the return showing the judgment unsatisfied by reason of the order of the court before the issuing of the second execution. We think, however, that the effect of his actual procedure was at most to make the second execution voidable and subject to a motion to quash, and that if such motion was not heard before the return on the original execution showing it to be unsatisfied was filed, the case falls squarely within the...