State ex rel. Newell v. District Court in & for Third Judicial District

• Decision Date: 27 April 1910
• Docket Number: 2133
• Court: Utah Supreme Court
• Parties: STATE ex rel. NEWELL v. DISTRICT COURT IN AND FOR THIRD DISTRICT et al

108 P. 1121

37 Utah 418

STATE ex rel. NEWELL v. DISTRICT COURT IN AND FOR THIRD DISTRICT et al

No. 2133

Supreme Court of Utah

April 27, 1910

Certiorari by the State, on the relation of Henry Newell against the District Court for the Third Judicial District Salt Lake County, and others to review an order of such court setting aside an order of sale in attachment proceedings.

ORDER ANNULLED.

M. E Wilson for plaintiff.

Lawrence & Robertson, Stephens, Smith & Porter, Dean F. Brayton and Allen T. Sanford for defendants.

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

This proceeding was instituted in this court under its original jurisdiction to obtain a writ of certiorari, which was prayed for to enable this court to review a certain order made by the district court of Salt Lake County, by which said court quashed or set aside a previous order entered by said court. The latter order directed the sale of certain personal property held under a writ of attachment issued in favor of the petitioner, and which property was held for the purpose of satisfying a judgment obtained by him in said court.

The facts briefly stated are: That on July 17, 1909, in a certain action then pending in the district court of Salt Lake County, wherein one Copeland was plaintiff and the Salt Lake Public Service Company, a corporation, and others were defendants, one W. B. Albertson was duly appointed receiver of, and took possession and retained possession of, the property and assets of said corporation for the purpose of winding up its affairs; that said corporation, as the tenant of the petitioner, became indebted to him in the sum of $ 1403.15 for rent; that, under our statute, sections 1407 to 1415, inclusive, Comp. Laws 1907, a lessor has a lien upon the property of the lessee for rent due and unpaid, which lien, under ordinary circumstances, is enforced by the commencement of an action, followed by an attachment by which the property of the lessee is seized and held pending the action and the entry of judgment therein; that on the 12th day of January, 1910, in an action duly commenced and pending in Salt Lake County, and in which an attachment had been duly issued, and certain property attached under the statute referred to, the petitioner, as lessor, obtained a judgment against the receiver of said corporation for the amount above stated; that before the bringing of said action the petitioner applied for and obtained leave from the district court aforesaid to bring the same against the receiver of said corporation, and obtained leave of said court to attach and take possession of certain property belonging to said corporation and in the possession of said receiver by virtue of said writ of attachment which was duly issued in said action; that after said property was surrendered by the receiver and seized under said writ of attachment, and after the judgment as aforesaid was obtained, said court ordered the attached property sold and the proceeds thereof to be applied to the satisfaction of said judgment to the extent of said proceeds; that after said order of sale had issued the defendants in this proceeding filed a motion in said district court to recall and quash said order of sale, or execution, as they call it, which motion was substantially based on the following grounds: That the movants appeared in the original action in which the receiver was appointed, and by way of cross-complaints there set forth that the defendant Savings & Trust Company, a corporation, had a valid and subsisting lien on all of the property, real and personal, of said Salt Lake Public Service Company by virtue of a trust deed or mortgage, and that the other two defendants had valid and subsisting statutory liens against said property, all of which the petitioner concedes to be true; that all of the property of said company at the time petitioner's action was commenced was in the possession of the receiver of said public service company, and that the same was by him held for the benefit of all the creditors of said company which was insolvent; that said defendants were not parties to nor appeared in the action of said petitioner, and that "it is an abuse of the process of this court to cause execution" to be levied upon the "property which is in the hands of the receiver;" and, further, "that it is unlawful and improper for said sheriff to interfere with the possession of said property." The district court granted the request of the defendants and entered an order recalling or quashing said order of sale or so-called execution. Counsel for petitioner in effect contend that the court was without jurisdiction to make said order (1) because there was no proper proceeding commenced or pending in which said court was authorized to act; (2) because the court was powerless to grant said motion for the reason that the movants had neither the right nor legal authority to make the motion or to obtain the relief sought by them in the manner and by the proceeding before stated; and (3) because the court in any event was without authority to recall said order of sale, and hence the order quashing the so-called execution is void.

It is fundamental that "every court has power to watch over the execution of its judgments," and thus has the power to recall or quash an execution or order of sale that has been improvidently or irregularly issued. (Rhodes v. Smith, 66 Ala. 174; Mattocks v. Judson, 9 Vt. 343.) All courts have power to "revoke, correct, restrain, or quash their own process, in the course of their ordinary jurisdiction." (Robinson v. Yon, 8 Fla. 350; Eaton v. Cleveland, St. L. & K. C. Ry. Co. [C. C.], 41 F. 421.) The contention, therefore, that the court was without jurisdiction generally cannot be sustained.

Nor is the contention sound that the defendants had no legal right or authority to invoke the aid of the court by motion; nor that the court had no authority to pass upon the question upon a mere motion. While, no doubt, it is the general rule that none but parties to the original or principal action who are liable to be injured can complain, and thus move the court to recall or quash an execution, yet there is an exception to this rule which is as well recognized as is the rule itself. Mr. Freeman, in his excellent work on Executions, in referring to the general rule, says: "To this rule an exception probably exists in favor of persons who, though not parties to the action, must necessarily be prejudiced by the enforcement of the writ, such as subsequent purchasers, lienholders, and execution or judgment creditors." (1 Freeman on Executions [3d Ed.], sec. 75.) That filing and serving a motion on the adverse party is the proper method of making the application, if made to the court in which the judgment is rendered, or out of which the execution is issued, whether the application be by a party to the action or by one affected as aforesaid, is also well settled, as appears from section 73 et seq., of the volume just cited. The doctrine, as stated by Mr. Freeman, is supported by the following authorities: Canan v. Carryell, 1 N.J.L. 3; Fox v. Union Turnpike Co., 37 Misc. 308, 75 N.Y.S. 464; Harrington v. O'Reilly, 9 Smedes & M. (Miss.) 216, 48 Am. Dec. 704; Jaffray v. Saussman, 52 Hun 561, 5 N.Y.S. 629.

The only case found which is directly to the contrary is Wallop v. Scarburgh, 5 Gratt. 1. There are, however some other cases which are sometimes referred to as being in harmony with the Virginia case. Some of those cases, like those from Georgia, are, however, based upon special local statutes, and hence have no special bearing upon the question, while in others, of which Hanika's Estate, 138 Pa. 330, 22 A. 90, 21 Am. St. Rep. 907, is a type, the holding is really based on the question that the party who applied to set aside the execution was not prejudiced, and hence his application was denied. Under the great weight of authority we think it must be conceded that the defendants had sufficient interest in the property to entitle them to invoke the aid of the court in the premises, and that their application, by motion was proper.

The real difficulty in this case, however, arises when we come to consider its real status. It is true, as counsel for the defendants contend, that the well-established rule is that property in the hands of a receiver is in the custody of the court appointing him, and cannot, without...