Ray v. Cox, Judge
| Decision Date | 19 March 1934 |
| Docket Number | 5513 |
| Citation | 83 Utah 499,30 P.2d 1062 |
| Court | Utah Supreme Court |
| Parties | RAY v. COX, Judge, et al |
Original proceeding in certiorari by Mary E. Ray against LeRoy H. Cox, Judge of the Fifth Judicial District of Utah in and for Millard County, and another, wherein E. G. Cowling demurred to the petition and moved to quash the writ of certiorari.
WRIT OF CERTIORARI DISMISSED, AND RECORDS REMITTED TO COURT BELOW.
Wm. B Higgins, of Fillmore, for plaintiff.
Cline Wilson & Cline, of Milford, for defendants.
A writ of certiorari was issued on petition of plaintiff to review an order of the district court of Millard county releasing certain property from attachment in the case of Mary E. Ray v. E. G. Cowling now pending in that court. The petition alleges that the district judge exceeded his jurisdiction in making an order releasing 20 tons of hay and 840 pounds of alfalfa seed from attachment. It appears from uncontradicted facts that Mary E. Ray leased to E. G. Cowling a farm located in Millard county for the years 1932 and 1933. Cowling paid the rent the first year but not the second. While Cowling was still in possession of the premises Mrs. Ray commenced action for the rent due and unpaid and obtained a writ of attachment under which the sheriff of the county levied and took into possession certain hay, alfalfa seed, and barley raised and harvested by Cowling then on the leased premises. Cowling has no other property or means out of which the judgment for rent could be satisfied. The affidavit for attachment was in the usual form under the attachment statute, but by permission of the court it was amended to indicate it was intended in enforcement of a lessor's lien. Cowling, without posting a redelivery bond, moved the court to release the property from attachment on the ground the property was exempt from execution and attachment. After a hearing limited to the question of whether or not the attached property was exempt, the court released from the attachment 840 pounds of alfalfa seed and 20 tons of hay, leaving the rest of the property taken subject to the writ.
Plaintiff contends this order was made in excess of the court's jurisdiction; that the property released was not exempt; that the court had no authority to release any of the property held under the writ without defendant having first filed bond for such release; and that her lessor's lien is superior to any exemption since the unpaid rent represents the purchase price of the crops which had been attached. She alleged that she had no appeal or other plain, speedy, and adequate remedy in the course of law by which she could have relief.
Defendant filed a demurrer to the petition, and a motion to quash the writ of certiorari on grounds, among others, that the petition does not show that the defendant judge either had no jurisdiction to make the order complained of or exceeded his jurisdiction in so doing; that the petition on its face shows that the crops attached were exempt from execution and fails to show that plaintiff is entitled to a lessor's lien thereon.
Without waiving the demurrer and motion defendant answered admitting most of the alleged facts but denying that the court exceeded jurisdiction in making the order complained of and alleging that the affidavits and evidence before the court conclusively disclosed that the property in question was exempt from execution and attachment under R. S. 1933, 104-37-13 and 104-37-14. The entire record of proceedings in the cause in the district court has been certified to this court and is now before us.
We shall not undertake to review or pass on all the points raised by the pleadings in this case. It is sufficient to say the writ must be dismissed for the reason it clearly appears from the record that the district court did not act without or in excess of jurisdiction.
It is the office and function of the writ of certiorari to inquire into and review determinations of an inferior tribunal, board, or officer without or in excess of jurisdiction. Hillyard v. District Court of Cache County, 28 Utah 220, 249 P. 806. The ruling made by the district court in releasing property from attachment is not reviewable by this court on certiorari except to the extent in which jurisdictional questions may be involved. Griffin Company v. Howell, 38 Utah 357, 113 P. 326.
In many jurisdictions the statutes give landlords a lien for rent on the property of the tenant, and in most states where this is so the statute also gives a lien on crops grown or growing on the leased premises. 2 Tiffany Landlord and Tenant 1915; note 9 A. L. R. 305. Some cases hold the landlord's lien, in absence of statutory provisions to the contrary, attaches to such property notwithstanding it may be exempt from execution. Note 9 A. L. R. 310. This rule, however, does not apply in this state for the reason the statute which grants the lien in favor of lessors restricts or limits the lien to nonexempt property of the lessee brought or kept upon the leased premises. The statute is as follows:
"Except as hereinafter provided, lessors shall have a lien for rent due upon all non-exempt property of the lessee brought or kept upon the leased premises so long as the lessee shall occupy said premises and for thirty days thereafter." R. S. Utah 1933, 52-3-1.
Plaintiff did not see fit to protect herself in this respect when the lease was written for there is no provision therein which subjects the grown or growing crops to the payment of the rent. No doubt this could have been done had the parties to the lease so desired. 2 Tiffany Landlord and Tenant 1964; 36 C. J. 479.
It is not disputed that Cowling is a farmer, head of a family, and that the alfalfa seed and hay released from attachment is exempt within the provisions of R. S. Utah 1933, 104-37-13 and 104-37-14, if, as a matter of law, such exemption may be asserted as against a landlord claiming the statutory lessor's lien. Plaintiff contends the rental of the premises is in the nature of the purchase price of crops raised thereon, and that because of R. S. Utah 1933, 104-37-16 the statutory exemptions cannot be asserted by the lessee in the face of a claimed lien by the landlord on the crops raised on the premises. This section reads as follows:
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