Novak v. Dow, No. 498

Docket NºNo. 498
Citation1970 NMCA 104, 82 N.M. 30, 474 P.2d 712
Case DateSeptember 04, 1970
CourtCourt 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.

[82 N.M. 31]

Page 713

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 [82 N.M. 32]

Page 714

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 [82 N.M. 33]

Page 715

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...

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41 practice notes
  • Howell v. Burk, No. 2801
    • United States
    • New Mexico Court of Appeals of New Mexico
    • July 19, 1977
    ...alleged [90 N.M. 697] Page 223 contain express terms inconsistent with § 23-1-26, supra. It was their obligation to do so. Novak v. Dow, 82 N.M. 30, 474 P.2d 712 (Ct.App.1970). There is no showing that the trial court's ruling on the bases for liability was The complaint alleges that PPG ma......
  • Sangre de Cristo Development Corp., Inc. v. City of Santa Fe, No. 9441
    • United States
    • New Mexico Supreme Court of New Mexico
    • November 22, 1972
    ...assert this claim (Morris v. Merchant, 77 N.M. 411, 423 P.2d 606 (1967); Cochran v. Gordon, 77 N.M. 358, 423 P.2d 43 (1967); Novak v. Dow, 82 N.M. 30, 474 P.2d 712 (Ct.App.1970)), and then to present argument and authority in support thereof (Sproule Const. Co. v. St. Paul Fire & Marine Ins......
  • State v. Ramirez, No. 2379
    • United States
    • New Mexico Court of Appeals of New Mexico
    • October 19, 1976
    ...appeal. State v. Alderete, 88 N.M. 619, 544 P.2d 1184 (Ct.App.1976); Doe v. State, 88 N.M. 347, 540 P.2d 827 (Ct.App.1975); Novak v. Dow, 82 N.M. 30, 474 P.2d 712 Page 49 [89 NM 641] (Ct.App.1970); N.M.R.Crim.App. 308 (Section 41--23A--308, N.M.S.A.1953 (2d Repl. Vol. 6, Supp.1975)). It is ......
  • State v. Tijerina, No. 701
    • United States
    • New Mexico Court of Appeals of New Mexico
    • December 22, 1972
    .... . Points on appeal not argued and not supported with citation to authority are deemed abandoned and will not be reviewed. Novak v. Dow, 82 N.M. 30, 474 P.2d 712 (Ct.App.1970). . . . ' Wilson v. Albuquerque Board of Realtors, 82 N.M. 717, 487 P.2d 145 Defendant's eleventh point is 'that th......
  • Request a trial to view additional results
41 cases
  • Howell v. Burk, No. 2801
    • United States
    • New Mexico Court of Appeals of New Mexico
    • July 19, 1977
    ...alleged [90 N.M. 697] Page 223 contain express terms inconsistent with § 23-1-26, supra. It was their obligation to do so. Novak v. Dow, 82 N.M. 30, 474 P.2d 712 (Ct.App.1970). There is no showing that the trial court's ruling on the bases for liability was The complaint alleges that PPG ma......
  • Sangre de Cristo Development Corp., Inc. v. City of Santa Fe, No. 9441
    • United States
    • New Mexico Supreme Court of New Mexico
    • November 22, 1972
    ...assert this claim (Morris v. Merchant, 77 N.M. 411, 423 P.2d 606 (1967); Cochran v. Gordon, 77 N.M. 358, 423 P.2d 43 (1967); Novak v. Dow, 82 N.M. 30, 474 P.2d 712 (Ct.App.1970)), and then to present argument and authority in support thereof (Sproule Const. Co. v. St. Paul Fire & Marine Ins......
  • State v. Ramirez, No. 2379
    • United States
    • New Mexico Court of Appeals of New Mexico
    • October 19, 1976
    ...appeal. State v. Alderete, 88 N.M. 619, 544 P.2d 1184 (Ct.App.1976); Doe v. State, 88 N.M. 347, 540 P.2d 827 (Ct.App.1975); Novak v. Dow, 82 N.M. 30, 474 P.2d 712 Page 49 [89 NM 641] (Ct.App.1970); N.M.R.Crim.App. 308 (Section 41--23A--308, N.M.S.A.1953 (2d Repl. Vol. 6, Supp.1975)). It is ......
  • State v. Tijerina, No. 701
    • United States
    • New Mexico Court of Appeals of New Mexico
    • December 22, 1972
    .... . Points on appeal not argued and not supported with citation to authority are deemed abandoned and will not be reviewed. Novak v. Dow, 82 N.M. 30, 474 P.2d 712 (Ct.App.1970). . . . ' Wilson v. Albuquerque Board of Realtors, 82 N.M. 717, 487 P.2d 145 Defendant's eleventh point is 'that th......
  • Request a trial to view additional results

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