Payson Exch. Sav. Bank v. Tietjen

• Decision Date: 04 April 1924
• Docket Number: 4095
• Citation: 63 Utah 321,225 P. 598
• Court: Utah Supreme Court
• Parties: PAYSON EXCH. SAV. BANK v. TIETJEN et ux

225 P. 598

63 Utah 321

PAYSON EXCH. SAV. BANK v. TIETJEN et ux

No. 4095

Supreme Court of Utah

April 4, 1924

Rehearing denied May 10, 1924.

Appeal from District Court, Fourth District, Utah County; M. L Ritchie, Judge.

Action by the Payson Exchange Savings Bank against Jesse E. Tietjen and wife. Judgment for plaintiff, and defendants appeal.

REVERSED AND REMANDED.

Thomas O. Ivins, of Salt Lake City, J. H. McDonald, of Provo, and M M. Warner, of Salt Lake City, for appellants.

Chase Hatch and M. B. Pope, both of Provo, and R. A. Porter, of Payson, for respondent.

FRICK, J. GIDEON, THURMAN, and CHERRY, JJ., and WOOLLEY, District Judge, concur. WEBER, C. J., did not participate.

OPINION

FRICK, J.

This is an appeal by Jesse E. Tietjen and Ina J. E. Tietjen, his wife, hereinafter called appellants, from a judgment entered by the district court of Utah county in favor of the Payson Exchange Savings Bank, hereinafter designated respondent.

The facts material to the appeal are these: The respondent commenced an action in the district court aforesaid against the appellants and two others in which it sought to set aside the deed of conveyance by which appellants had conveyed real estate to the father of the appellant Jesse E. Tietjen, one of the other defendants, which conveyance it was alleged by respondent, was without consideration and was conceived and executed in fraud of its rights as judgment creditor of appellants. Such proceedings were had in said action that on June 11, 1923, said court made findings of fact and conclusions of law to the effect that the said conveyance was in fraud of respondent's rights as a judgment creditor of appellants and entered a judgment or decree setting aside and annulling said deed of conveyance, and in said decree ordered the premises in question sold and the proceeds thereof, so far as necessary, applied to the payment of respondent's judgment. On June 29, 1923, appellants, pursuant to our statute, duly filed a declaration in which they claimed the premises in question as a homestead and as such exempt from forced sale. On July 8th appellants served a notice upon the sheriff of Utah county to the effect that they claimed the premises in question as their homestead and as exempt from judicial sale. About the same time they also filed a motion in said proceedings in said court in which they asked the court to modify said decree by eliminating therefrom the order of sale. On July 20th the motion was denied upon the sole ground that the court was powerless to grant the same for the reason that the same was filed after the term of court at which the judgment was entered had expired. On the day of August following the appellants filed what in the record is called a petition and motion. In the petition they allege that the premises in question constitute their homestead, that a declaration to that effect had been duly filed pursuant to our statute, and that the premises were exempt from judicial sale. Appellants, however, again moved the court for a modification of the judgment upon the ground that the premises are exempt from judicial sale. On the 16th day of August the court again denied the motion upon the ground that it had no power to grant it, but refused to examine into or to pass upon appellants' petition in which they alleged that the premises constituted their homestead and hence were exempt. On August 20, 1923, a "motion for a new trial and for a rehearing on the claim of exemption" was filed, which was denied on the same day. On the 14th day of December, 1923, the appellants served and filed their notice of appeal.

We have been thus specific in stating the foregoing proceedings, for the reason that some question was raised at the hearing in this court respecting the appellants' right to be heard on their appeal.

In view of the record, there is no doubt respecting the right of appellants to be heard.

The appellants insist that the court erred in denying their motion to modify the decree as hereinbefore stated, and in refusing to act on appellants' petition, and in failing to find and adjudge that the premises in question constitute appellants' homestead and therefore were exempt from execution or forced sale.

For the purposes of this decision we may well concede that the district court was without power to modify the decree at the time the application for its modification was made. The court's refusal in that regard has, however, nothing to do with the merits of this appeal. The only question here is Do the premises in question constitute the homestead of the appellants? For the purposes of the decision we are bound to assume that the premises in question do constitute their homestead and as such are exempt under our Constitution and statute. The foregoing assumption necessarily follows from the fact that the allegations of appellants' petition, which are made under oath, that the premises in question do constitute their homestead and hence are exempt against attack by any execution or order of sale emanating from any court, are not denied--not even questioned. Then again, the district court, always and under all circumstances, refused appellants a hearing upon their petition and entered judgment dismissing them out of court without a hearing upon their claim of homestead. True, the court based its conclusion upon the ground that it was powerless to modify the decree. It also seems, although not expressly so stated by the court, that a finding that the premises were exempt and hence not subject to the order of sale would be tantamount to an indirect modification of the decree which contained the order of sale. The district court, in arriving at the foregoing conclusion, manifestly overlooked the legal effect of the order of sale. It has become the settled law of this state that an execution levied upon premises constituting the homestead of a judgment debtor is absolutely void, not merely voidable. Antelope Shearing Corral Co. v. Con. Wagon & Mach. Co. , 54 Utah 355, 180 P. 597. Our statute (Comp. Laws Utah 1917, § 6868) specifically provides that judgments become a lien only upon the nonexempt real estate of the judgment debtor. If, therefore, the real estate of the judgment debtor constitutes his homestead, the...