Otis Bros. & Co. v. Nash

• Decision Date: 04 September 1901
• Citation: 26 Wash. 39,66 P. 111
• Parties: OTIS BROS. & CO. v. NASH et al.
• Court: Washington Supreme Court

66 P. 111

26 Wash. 39

OTIS BROS. & CO. v. NASH et al.

Supreme Court of Washington

September 4, 1901

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by Otis Bros. & Co. against L. B. Nash and others. A judgment in plaintiff's favor was assigned to Johanna E Brockhausen. Petition by defendant Nash to have an alias execution issued by said assignee and a sale thereunder set aside. From a judgment quashing the alias execution, levy and sale, said Johanna Brockhausen appeals. Reversed.

R. L. Edmiston and A. E. Gallagher, for appellant.

L. G Nash and R. E. Porterfield, for respondent.

HADLEY J.

On the 12th day of June, 1895, Otis Bros. & Co., a corporation, obtained a judgment in the superior court of Spokane county against L. B. Nash and others for the sum of $1,664.50, with interest thereon from date of judgment at the rate of 8 per cent. per annum, and for costs, taxed at $62.65. Thereafter, in the year 1895, a writ of execution issued under said judgment. A levy was made upon the property of said Nash, and a sale made in pursuance thereof to the amount of $500, which sale was afterwards confirmed by the court. On the 20th day of November, 1899, said Otis Bros. & Co. assigned said judgment to Johanna E. Brockhausen, and afterwards, at the instance of said assignee, a new execution was issued under said judgment, dated March 14, 1900. Said new execution made no mention of the $500 credit which should have been given by reason of the sale aforesaid, but commanded the sheriff to seize sufficient of said property to satisfy the whole amount of said judgment and costs, including interest thereon at the rate aforesaid. Afterwards a levy was made upon real estate belonging to said Nash, and the same was sold by the sheriff to the said assignee for the sum of $1,650. The aggregate amount of the two sales was not sufficient to cancel the whole of said judgment, interest, and costs. The sheriff's return of the last-named sale was filed on the 17th day of April, 1900. On the 14th day of May, 1900, the court entered an order confirming said sale. No objections to the confirmation of sale had been filed within the time limited by law or at all. On the same day the order of confirmation was entered, said Nash filed in the same cause his petition reciting, in substance, the fact of his ownership of the real estate sold, the history of the judgment, prior sale thereunder, and failure to credit the amount of such prior sale upon the new execution, as heretofore stated. The petition also alleges that the property sold under the last execution is worth the sum of $5,000, and that the only lien against the same is that for unpaid taxes in the sum of about $600; that said property was unfairly and unlawful sold by the sheriff at the instigation of said Johanna Brockhausen, in this: that the same was sold en masse and in solido; that said real property is divided into subdivisions, parcels, and lots, and could have been sold in parcels and lots; that any one of the parcels or lots mentioned was of sufficient value to pay the lawful amount of said judgment; that there were no bidders at said sale, except the agents and attorneys of said Johanna Brockhausen, and the sale should have been adjourned by the sheriff to another date, and from time to time, until bidders were present. The petition concludes with the prayer that said execution, levy, and sale be set aside, and adjudged null and void and of no effect. Afterwards, on the 29th day of May, 1900, said Nash filed an amended petition containing substantially the same recitals as the original petition, with additional allegations as to discrepancies as to dates in the sheriff's notices of sale and in the date of sale, and also as to misdescription of real estate sold. Thereafter said Johanna Brockhausen moved the court to strike from the files the said petition and amended petition, for the reason that the same are frivolous, without merit, and unauthorized by law. The motion was supported by the affidavit of counsel, and was by the court denied, exception to such ruling being duly noted. Thereupon said Brockhausen interposed a demurrer to the amended petition of said Nash. The demurrer was by the court overruled, and exception to such ruling duly noted. An answer to the amended petition was then filed by said Brockhausen, putting in issue certain allegations contained in such amended petition. The answer also contained affirmative matter, but the court sustained a demurrer thereto. A trial was then had, evidence introduced, and the court entered judgment that the execution issued in said cause on March 14, 1900, and the levy and sale made thereunder, should be quashed, set aside, and held for naught, and that said Johanna Brockhausen take nothing under said execution, levy, and sale. From said judgment said Johanna Brockhausen has appealed to this court.

Respondent, Nash, moves to dismiss the appeal herein upon the ground that the order appealed from is not an appealable order; that it is not a final order, and does not affect a substantial right; and also upon the further ground that, if said order is an appealable one, the appeal therefrom must be taken within 15 days from the entry thereof. We think the order appealed from comes within the classification of subdivision 7, § 6500, 2 Ballinger's Ann. Codes & St. The words of the statute are as follows: 'From any final order made after judgment which affects a substantial right.' This was an order made after judgment. It was final in its nature, and affected a substantial right, for the reason that it purported to set aside a sale of real estate made by the sheriff, and under such sale the appellant had acquired substantial rights if said sale was authorized in law. It does not meet the point to say that appellant could have had a new sale of the same property, and for that reason the order was not final in its effect. The order did undertake to nullify the sale that was made, and by its terms finally and forever undertook to determine any rights that may have existed under said sale. If, at the time the order was made, appellant held the real estate sold as a purchaser authorized in law to hold the same, then her rights as such purchaser were fixed, and she could not be required to subject the property to a new sale.

It is next urged that, in any event, an appeal from this order must have been taken within 15 days from the date of the entry thereof. Section 6502, 2 Ballinger's Ann. Codes & St provides as follows: 'In civil actions and proceedings an appeal from any final judgment must be taken within ninety days after the date of the entry of such final judgment; and an appeal from any order, other than a final order, from which an appeal is allowed by this act, within fifteen days after the entry of the order, if made at the time of the hearing, and in all other cases within fifteen days after the service of a copy of such order, with written notice of the entry thereof, upon the party appealing, or his attorney.' Should it be conceded that respondent's argument is correct, that the order appealed from comes within the 15-day limitation specified in section 6502, supra, still, under the record in this case, his motion is not well taken. The statute provides that appeals under the 15-day provision shall be taken within 15 days after the entry of the order, if made at the time of the hearing, and in all other cases within 15 days after the service of a copy of the order, with written notice of the entry thereof. ...