Walker v. Davies
| Decision Date | 24 May 1976 |
| Docket Number | No. 11737,11737 |
| Citation | 113 Ariz. 233,550 P.2d 230 |
| Parties | Claire U. WALKER and Pearl Walker, his wife, Appellants, v. Richard K. DAVIES and Shirley Davies, husband and wife, Larry A. Webb and Bette J. Webb, his wife, John Mummert, Sheriff of Maricopa County, Arizona, Appellees. |
| Court | Arizona Supreme Court |
Herbert Mallamo, Phoenix, for appellants.
Merrill W. Robbins, Michael E. Hurley, Phoenix, for appellees Webb.
This is an appeal by plaintiffs-appellants Walker from the judgment of the Maricopa County Superior Court in favor of defendants-appellees Davies and Webb. The question presented on appeal is whether the Superior Court has jurisdiction to entertain an action to foreclose a judgment lien. Jurisdiction is taken by this Court pursuant to Rule 47(e)(5), Rules of the Supreme Court.
We must review the facts from three separate actions in order to determine the issues in this case. In the first action, Cause No. 231368, appellees Davies obtained a money judgment from appellants Walker and filed an abstract of the judgment so as to perfect a lien upon all the real property of appellants in Maricopa County. A general writ of execution was issued and returned unsatisfied. Next appellant Walker was brought in on a supplemental proceeding to ascertain what assets the debtor had which could be used to satisfy the judgment. Appellees also tried to levy upon a color T.V., but the sheriff returned the writ unsatisfied. Appellants then filed a petition in bankruptcy, with appellees Davies scheduled as judgment creditors. The trustee in bankruptcy abandoned a parcel of real property as being too encumbered. Appellees Davies, holding a valid judgment lien, filed an action seeking to foreclose their lien. This constituted the second action, Cause No. 253447.
Appellants Walker were personally served, but did not file an answer or make an appearance even though they were represented by an attorney. After a default judgment was entered a special execution upon the real property was issued and levied upon. Appellees Davies purchased the property at the sheriff's sale, and then transferred and assigned the sheriff's certificate of sale to appellees Webb. The sheriff delivered a deed to the real property at the end of the statutory period for redemption. On October 4, 1972 appellees Webb then demanded possession and had issued a writ of possession. On October 12, 1972 appellants filed an action (the third one in this series) seeking to vacate the judgment in the second action on the basis that it was void for lack of jurisdiction and that appellants were deprived of due process because their real property was sold prior to their personal property. The trial court entered judgment for appellees and appellants appealed.
Appellants urge that the judgment in the second action was void on its face because the court did not have jurisdiction. This constitutes a collateral attack on a judgment and can be maintained only if the former judgment was void upon its face.
'The law of Arizona is, and for long has been, that a judgment may not be attacked collaterally even for fraud unless it is void upon its face. * * * '* * * Three things must concur or a judgment is void upon its face, and may be attacked at any time. The court must have (a) jurisdiction of the subject-matter of the case, (b) jurisdiction of the persons involved in the litigation, and (c) jurisdiction to render the particular judgment given. If these three matters concur, even though the judgment be erroneous or wrong, so that it could be reversed on appeal or set aside on direct attack, it is not void as against collateral attack. " School Dist. #1 of Navajo County v. Snowflake U.H.S. Dist., 100 Ariz. 389, 391--92, 414 P.2d 985, 987 (1966).
The real property was located in Maricopa County and the Walkers were properly served with process so the court had both jurisdiction of the subject matter of the case and jurisdiction of the persons involved in the litigation. Therefore, if the trial court had jurisdiction to render the particular judgment given, the 'judgment (is) valid on its face' and is 'not subject to collateral attack.' It is 'binding until reversed on appeal.' School Dist. #1 of Navajo County & Snowflake U.H.S. Dist., supra, 100 Ariz. at 391, 414 P.2d at 987. We hold that although it is true that the more common method of foreclosing a judgment lien is by levy and sale pursuant to A.R.S. §§ 12--1551 and 12--1553, it does not follow that levy and sale is the exclusive remedy allowable to foreclose a judgment lien.
The second action by the judgment creditors, Davies, was instituted only after a general execution was returned unsatisfied, as was the attempt to levy on the color T.V. In addition, appellant Walker was brought in on a debtor's Supplemental Examination, all to no avail.
To obtain satisfaction of the judgment debt in the instant case the judgment-creditor instituted an action to foreclose the judgment lien. A.R.S. § 12--1635B provides:
'The execution creditors may also proceed against defendant therein and other parties, by original complaint, to obtain satisfaction of their executions after they have been returned unsatisfied in whole or in part.'
'(A)n execution is the mere means for collecting the judgment or enforcing the judgment lien.' Ingraham v. Forman, 49 Ariz. 29, 63 P.2d 998 (1937). Since the judgment creditors satisfied the necessary prerequisites prior to commencing the second action in an effort to satisfy their judgment debt a separate action could be brought under A.R.S. § 12--1635B, and, therefore, the trial court had the necessary power to render the particular judgment given.
In addition, we note that there is authority for 'the principle that in a...
To continue reading
Request your trial
-
Legacy Found. Action Fund v. Citizens Clean Elections Comm'n
...collateral attack. See, e.g., Chaparro v. Shinn , 248 Ariz. 138, 142-43, ¶ 22, 459 P.3d 50, 54–55 (2020) (citing Walker v. Davies , 113 Ariz. 233, 235, 550 P.2d 230, 232 (1976) ); Sch. Dist. #1 of Navajo Cnty. v. Snowflake Union High Sch. Dist. , 100 Ariz. 389, 391-92, 414 P.2d 985 (1966) (......
-
Shinn v. Ariz. Bd. of Exec. Clemency
...Crim. P. 24. In sum, unlike void orders or judgments, voidable ones are not subject to "collateral attack." See Walker v. Davies , 113 Ariz. 233, 235, 550 P.2d 230, 232 (1976). ¶27 The test for whether an order or judgment is void—and subject to collateral attack—was established nearly a ce......
-
Hospital Underwriting Group, Inc. v. Summit Health Ltd.
...wrong and could be reversed on appeal or set aside on direct attack, it is not void as against collateral attack. Walker v. Davies, 113 Ariz. 233, 235, 550 P.2d 230, 232 (1976). Thirdly, even if the Arizona courts would permit a collateral attack by declaratory judgment, the district court ......
-
Flangas v. Perfekt Mktg., LLC
...attack on a judgment only on the grounds that the issuing court lacked personal or subject-matter jurisdiction. See Walker v. Davies , 113 Ariz. 233, 550 P.2d 230, 232 (1976). Even if Flangas had actual notice of the filing before May 5, 2019, he still would lack any ability to attack the j......