Nixon v. Triber
Decision Date | 05 June 1979 |
Docket Number | No. 12422,12422 |
Citation | 100 Idaho 198,595 P.2d 1093 |
Court | Idaho Supreme Court |
Parties | W. W. NIXON, a partner, dba Nixon, Nixon, Lyons & Bell, Plaintiff, v. Darrell A. TRIBER and Marjorie J. Triber, husband and wife, Defendants-Respondents. Darrell A. TRIBER and Marjorie J. Triber, husband and wife, Plaintiffs-Respondents, v. Howard BLACK and Loralee Black, husband and wife, Defendants-Appellants, and Thor Fladwed, Sheriff of Kootenai County, State of Idaho, Defendant-Respondent. |
Thomas A. Mitchell, Coeur d'Alene, for defendants-appellants.
Sidney E. Smith, Nathan D. Hult, Chief Deputy Pros. Atty., Coeur d'Alene, for defendants-respondents.
Purchasers of real property at an execution sale appeal from a district court order vacating the sale because notice of the sale failed to comply with I.C. § 11-302(3). We hold that the district court erred in setting aside the execution sale because I.C. § 11-303 provides the exclusive remedy for failure to comply with the notice provisions of I.C. § 11-302. Accordingly, we reverse and remand.
The facts in this consolidated appeal are uncontroverted. A judgment for $1,674.65 was entered against respondents Darrell A. and Marjorie J. Triber in the case of Nixon v. Triber (district court no. 33521). On the basis of that judgment, a writ of execution was issued instructing respondent Thor Fladwed, Sheriff of Kootenai County, to levy execution on certain real property belonging to the Tribers. Respondent Fladwed issued a notice of levy and advertised the execution sale in the Coeur d'Alene Press. However, all parties agree that respondent Fladwed failed to post notices of the sale in the precinct or city where the property is located, as required by I.C. § 11-302(3). 1
The execution sale was held on December 17, 1975, at which time appellants, Howard and Loralee Black, purchased the property in question for $1,800.00. Six months later respondent Fladwed issued his sheriff's deed to the Blacks since no redemption had been made.
Thereafter, respondents Triber moved the district court for an order declaring the execution sale null and void because of respondent Fladwed's failure to comply with the notice requirements of I.C. § 11-302(3). The district court held that the notice requirements of I.C. § 11-302 are mandatory and an order was entered on October 7, 1976, which vacated the execution sale of respondents Tribers' real property. Appellants Howard and Loralee Black, who purchased the Tribers' property at the execution sale, appeal from the October 7th district court order vacating the sale.
The sole question presented on appeal is whether the district court erred in vacating the execution sale because of the sheriff's failure to give notice in accordance with I.C. § 11-302.
Appellants claim that the district court order vacating the execution sale is improper because I.C. § 11-303 provides the exclusive remedy for noncompliance with the notice requirements of I.C. § 11-302. I.C. § 11-303 states:
Respondents, on the other hand, contend that the district court properly vacated the sale in this instance.
The question raised in this appeal is one of first impression in this jurisdiction. I.C. §§ 11-302(3) and 11-303, originally enacted in 1881, were taken directly from § 692(3) and § 693 of California's Code of Civil Procedure. When enacted in Idaho, I.C. § 11-303 was identical with § 693 Ca.C.C.P.1872, and I.C. § 11-302(3) was substantially identical with § 692(3) Ca.C.C.P.1872. A statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction. State v. Miles, 97 Idaho 396, 545 P.2d 484 (1976); Doggett v. Electronics Corp. of Am., 93 Idaho 26, 454 P.2d 63 (1969); Johnson v. Casper, 75 Idaho 256, 270 P.2d 1012 (1954); Services, Inc. v. Neill, 73 Idaho 330, 252 P.2d 190 (1953).
In 1855 the Supreme Court of California first construed the California statutes from which I.C. §§ 11-302(3) and 11-303 were taken. Smith v. Randall, 6 Cal. 47, 65 Am.Dec. 475 (1855). In Smith certain real property belonging to the respondent was levied on and sold at an execution sale to satisfy a judgment that had been entered against him. On respondents' motion, the trial court entered an order setting aside the execution sale and the purchaser of the property appealed. On appeal, respondent argued that the trial court's order was proper because the notice of sale failed to comply with Section 221 of the California Practice Act (later codified as § 692 Ca.C.C.P.1872).
In reversing the trial court's order setting aside the execution sale, the California Supreme Court held:
Smith v. Randall, supra at 6 Cal. 50.
Subsequent California cases decided prior to Idaho's adoption of I.C. §§ 11-302 and 11-303 consistently adhered to the opinion expressed in Smith v. Randall, supra. Simson v. Eckstein, 22 Cal. 580 (1863); Shores v. Scott River Water Company, 17 Cal. 626 (1861); Harvey v. Fisk, 9 Cal. 93 (1858). This court must presume that the Idaho legislature was aware of the interpretation of the California statutes by the highest court in California and intended our interpretation to be in accord therewith, absent an expression of legislative intent to the contrary. Doggett v. Electronics Corp. of Am., supra; Lawrence Warehouse Co. v. Rudio Lumber Co., 89 Idaho 389, 405 P.2d 634 (1965); 73 Am.Jur.2d Statutes, § 333; 82 C.J.S. Statutes, § 372.
Despite the remedy against the officer provided by I.C. § 11-303, respondents rely on Gaskill v. Neal, 77 Idaho 428, 293 P.2d 957 (1956), Joy Mfg. Co. v. R.S. McClintock Diamond Drilling Co., 77 Idaho 309, 291 P.2d 874 (1955), and Terry v. Terry, 70 Idaho 161, 213 P.2d 906 (1950), to support their contention that failure to comply with the notice provisions of I.C. § 11-302 renders an execution sale void and the sheriff's deed ineffective.
These three cases present situations that are factually different than the instant case and are therefore distinguishable. In each of these...
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