Novak v. Dow

• Decision Date: 04 September 1970
• Docket Number: No. 498,498
• Citation: 1970 NMCA 104,82 N.M. 30,474 P.2d 712
• Parties: Marie NOVAK, Plaintiff-Appellant, v. Red DOW and Albuquerque National Bank, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 712

474 P.2d 712

82 N.M. 30

Marie NOVAK, Plaintiff-Appellant, v. Red DOW and Albuquerque National Bank, Defendants-Appellees.

No. 498.

Court of Appeals of New Mexico.

Sept. 4, 1970.

John B. Speer, Albuquerque, for appellant

Peter J. Adang, Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, for appellee Albuquerque National Bank.

James A. Maloney, Atty. Gen., Ray Shollenbarger, Asst. Atty. Gen., Santa Fe, for appellee Red Dow.

OPINION

WOOD, Judge.

Plaintiff's damage suit claimed Sheriff Dow wrongfully refused to conduct an execution sale and claimed the Albuquerque National Bank unlawfully obtained a delay in the scheduled sale. The Bank counterclaimed, asserting a right to possession of the car involved and asserting a security interest superior to the execution levy. The trial court granted summary judgment adverse to plaintiff on all of the claims; plaintiff appeals. The issue is the propriety of the summary judgments. We affirm the summary judgment in favor of the Bank on plaintiff's damage claim. We reverse the other summary judgments.

The claim against Dow.

Plaintiff's unverified complaint alleges that: plaintiff had an unsatisfied Small Claims Court judgment against Bowling; execution on this judgment was delivered to Deputy Sheriff Osterman in November, 1968; on January 7, 1969, 'while the execution was in force,' Osterman levied on a certain car; sale under the levy was advertised; the Small Claims Court stayed the sale and subsequently dissolved the order of stay; plaintiff requested Dow to have a deputy conduct the sale on the date to which it had been postponed; Dow refused to permit this and '* * * refused to assist in any way to conduct a sale of the car, * * *.'

Dow's unverified answer denies, on information and belief, most of the allegations of the complaint. The answer does admit plaintiff's request to conduct the sale on the postponed date and Dow's refusal to assist in a sale of the car. The refusal was on the basis that '* * * the levy had not been made by his office.' Whether the levy had been made by Dow's office, obviously, is a material issue on the question of Dow's alleged wrongful refusal to donduct the execution sale.

Dow moved for summary judgment on the basis of the pleadings and the affidavits filed of record. The pleadings, being unverified, do not lend support for or against the motion for summary judgment in this case. See Rekart v. Safeway Stores, Inc., 81 N.M. 491, 468 P.2d 892 (Ct.App.1970). Neither the affidavits filed on behalf of the Bank nor the affidavits by plaintiff's attorney go to the question of a levy by the Sheriff's office.

The only support for the motion is Sheriff Dow's affidavit. His affidavit does not assert that the levy was not made or that it was not made by Osterman. His affidavit does go to Osterman's authority to make the levy. The Sheriff states that '* * * Osterman was not a regularly full-time salaried deputy sheriff on the staff of the Sheriff's Department at the time of the alleged service of the execution * * *'; that Osterman '* * * did have a special deputy's commission, which gives the holder no authority to act in any capacity for the Sheriff's office; * * *'

Section 15--40--9, N.M.S.A.1953 (Repl.Vol. 3) gives the Sheriff authority to appoint deputies. Section 15--40--12, N.M.S.A.1953 (Repl. Vol. 3) recognizes there may be 'regular' and 'special' deputies. A classification of 'special deputy' does not, however, establish a lack of authority to serve a writ of execution or make a levy pursuant to the writ. Section 15--40--15, supra, specifically refers to '* * * special deputies to serve any particular order, writ or process, * * *.' The fact that Osterman may have been a 'special deputy' does not establish an absence of authority, on his part, to levy on the car.

Section 15--40--11, N.M.S.A.1953 (Repl. Vol. 3) refers to the powers of deputy sheriffs. It states: 'The said deputies are hereby authorized to discharge all the duties which belong to the office of sheriff, that may be placed under their charge by their principals, * * *.' Thus, Deputy Sheriff Osterman had such authority as had been conferred upon him by Sheriff Dow. The extent of Osterman's authority was a question of fact.

Sheriff Dow's affidavit also states that: he took office on January 1, 1969; he had no personal knowledge of the execution; the records of the Sheriff's office do not show the execution; the execution was never sent or received by the Sheriff's office; and the execution was never served through his office. The affidavit also states that Osterman was not qualified to serve the execution.

The opposing affidavit of E. M. Stoll states that: the prior sheriff, Wilson, had authorized Stoll and Osterman to levy executions; that they did so regularly; that executions were brought directly to Stoll and Osterman with Sheriff Wilson's knowledge and approval; immediately after midnight on January 1, 1969, Sheriff Dow issued new commissions to Stoll and Osterman; and a form of the new commission is attached. The commission form attached contains no limitation on the deputy's authority. Stoll states: '* * * Dow told me at that time that we were to continue operating as deputies as we had been doing under Joe Wilson. * * *'

Stoll's affidavit raises factual issues as to whether Sheriff Dow would have had knowledge of the execution, whether the records of his office would have shown the execution, whether the execution would have passed through his office, whether the execution was served under his authority and whether Osterman had authority to make the service. There being material fact issues, they must be resolved at trial. The summary judgment in favor of Sheriff Dow was improperly granted. Jacobson v. State Farm Mutual Automobile Insurance Company, 81 N.M. 600, 471 P.2d 170, decided June 22, 1970.

The claim against the Bank.

Plaintiff's damage claim against the Bank asserts: 'The defendant bank unlawfully intervened * * * and unlawfully procured the order from the small claims court which delayed the scheduled sale of the car levied upon.'

Although the summary judgment in favor of the Bank on this damage claim has been appealed, an issue raised by the briefs is whether an appeal, generally, from the summary judgment, sufficiently states a 'point relied on' for purposes of review. See § 21--2--1(15)(11), N.M.S.A.1953 (Supp.1969). We assume that it does.

However, plaintiff presents neither arguments nor authorities in her brief in chief as to why the trial court erred in granting summary judgment on this damage claim. See § 21--2--1(15)(14), N.M.S.A.1953 (Supp.1969). We assume, but do not decide, (see Sanchez v. Bernalillo County, 57 N.M. 217, 257 P.2d 909 (1953)), that arguments and authorities could be presented for the first time in the reply brief. The reply brief states: '* * * the district court's errors in giving the bank priority over the plaintiff are * * * good reasons for reversing the judgment in its entirety.' This is the sum of the argument; no authorities are presented in support. As to this argument, it is not explained how the asserted error in priorities, which involves the Bank's counterclaim and the asserted levy by Osterman, affects or in any way pertains to a damage claim against the Bank for obtaining an order delaying the execution sale.

Plaintiff has the burden of clearly pointing out the asserted error of the trial court. Morris v. Merchant, 77 N.M. 411, 423 P.2d 606 (1967); Cochran v. Gordon, 77 N.M. 358, 423 P.2d 43 (1967). Plaintiff has not met that burden. Further, even though the propriety of the summary jdugment in favor of the Bank is assumed to have been presented as a point relied on for reversal, the point is neither argued nor supported by authority. Therefore, it is considered as abandoned. Sproul Const. Co. v. St. Paul Fire & Marine Ins. Co., 74 N.M. 189, 392 P.2d 339 (1964); Gibbs v. Whelan, 56 N.M. 38, 239 P.2d 727 (1952). Accordingly, the summary jdugment in favor of the Bank is affirmed.

Summary judgment for the Bank on its counterclaim.

In its counterclaim, the Bank alleged that: Bowling purchased the car, financing it by a loan from the Bank; the loan was secured by a security agreement covering the car; the security agreement was filed with the Motor Vehicle Department; and plaintiff had constructive notice of the Bank's lien. The Bank alleged: plaintiff obtained possession of the car pursuant to a writ of execution; the Bank's lien is a superior lien and the Bank is entitled to possession of the car; after demand plaintiff continued to wrongfully detain the vehicle.

The counterclaim asked that a writ of replevin be issued directing the Sheriff to seize the car from plaintiff and to deliver it to the Bank. The counterclaim also sought a jdugment that the Bank was entitled to possession of the car '* * * exclusive of any rights of possession * * *' by plaintiff. An affidavit in replevin and a bond in replevin were filed. The writ of replevin was issued.

The summary judgment in favor of the Bank on the counterclaim states that the Bank is entitled to possession of the car and directs the Sheriff to deliver custody of the car to the Bank. Because of the contents of the summary judgment, two questions must be discussed in determining its propriety.

The first question concerns the writ of replevin. The counterclaim did not waive seizure and delivery of the property as authorized by § 22--17--7, N.M.S.A.1953. It alleged a right to immediate possession, a wrongful detention by plaintiff, and asked for recovery of the car. Section 22--17--1, N.M.S.A.1953. It proceeded on the basis that the car was not in the possession of an officer, see §§ 22--17--2 and 22--17--3, N.M.S.A.1953, but in plaintiff's possession.

Plaintiff asserts that the writ of replevin was never served. Contending to the contrary, the Bank relies on certificates of mailing signed by counsel. These certificates apply only...