Smith v. Arizona Engineering Co.

• Decision Date: 24 November 1920
• Docket Number: Civil 1790
• Citation: 193 P. 303,21 Ariz. 624
• Parties: JOSEPH P. SMITH, T. P. KINGREY and V. DU BOIS, Appellants, v. ARIZONA ENGINEERING COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

193 P. 303

21 Ariz. 624

JOSEPH P. SMITH, T. P. KINGREY and V. DU BOIS, Appellants, v. ARIZONA ENGINEERING COMPANY, a Corporation, Appellee

Civil No. 1790

Supreme Court of Arizona

November 24, 1920

APPEAL from a judgment of the Superior Court of the County of Mohave. J. E. Jones, Judge. Affirmed.

Mr. J W. Hocker and Messrs. Sprowls & Downing, for Appellants.

Mr Charles L. Lewis and Mr. E. E. Armour, for Appellee.

OPINION

ROSS, J.

December 1, 1917, appellee instituted suit for debt against appellants in the superior court of Mohave county, and at the same time caused a writ of garnishment to be issued and levied upon 248,750 shares of the stock of the Jamison Mines Company, a domestic corporation, as the property of appellants. The cause was tried April 25, 1917, and thereafter, in due course, judgment for $558.47, principal, interest and costs was entered in favor of appellee against appellants. The appellants, at the time of bringing suit and service of process, were residents of California, but filed answers and were represented by attorneys at the trial, one of whom resided at Kingman, the county seat of Mohave county, and one at Los Angeles, California. The judgment as originally entered did not foreclose the garnishment lien against the property that had theretofore been levied upon. Afterward however, upon notice to the appellants' attorney residing in Kingman, appellee moved the court to amend the judgment so as to show a foreclosure of the garnishment lien, and an order of sale. Upon a hearing, the amendment was allowed. Thereafter an execution or order of sale was issued and delivered to the sheriff of said county, who, after advertising according to law, on August 19, 1918, sold said 248,750 shares of stock to one George W. Kays for the sum of $558.47, being the amount of appellee's judgment.

Some time in May 1919, appellants filed what they have chosen to designate "Notice of Motion to Vacate and Set Aside the Sale Made under Execution," in which various reasons are set forth as grounds why the sale should be vacated and set aside, and at the same time made a tender of the amount of the judgment. After a hearing on said motion on August 12, 1919, it was denied by the court. It is from this order that the appeal is prosecuted.

The only assignment of error is in the following words:

"The court erred in denying defendants' notice to set aside the sale on execution."

This assignment does not comply with the rules of the court nor the statute (paragraph 1261, Civ. Code), in that it fails to point out the particulars in which the ruling was erroneous, but, inasmuch as no objection to the assignment was made, its insufficient and defective form will have to be overlooked by the court. Paragraph 1262, Civ. Code. Brought v. Minor, 17 Ariz. 28, 148 P. 294.

Any irregularities in the trial, the entry or amendment of the judgment cannot be raised by a motion to set aside the sale under execution. Such, if any exist, should have been presented upon appeal.

The contention that the service of the writ of garnishment, the advertisement of the sale, and the sale itself, were irregular and not in accordance with law, is without merit.

The principal ground urged to the lower court and now pressed here against the court's ruling is the inadequacy of the sale price of appellants' stock. The court heard evidence upon that question. One of the...