Weltsch v. O'Brien

Decision Date07 October 1975
Docket NumberCA-CIV,No. 1,1
Citation25 Ariz.App. 50,540 P.2d 1269
PartiesJulian F. WELTSCH, Appellant, v. Alan T. O'BRIEN and Barbara O'Brien, Appellees. 2667.
CourtArizona Court of Appeals

Renaud, Cook, Miller & Cordova, P.A., by Joseph B. Miller, Phoenix, for appellant.

Stuart Herzog, Tucson, for appellees.


JACOBSON, Presiding Judge.

The sole issue to be determined on this appeal is the validity of a renewal of a judgment under A.R.S. § 12--1612.

This issue arose out of a suit brought by plaintiffs-appellees Alan T. O'Brien and Barbara O'Brien, against defendant-appellant Julian F. Weltsch, for wrongful garnishment. The trial court, on cross motions for summary judgment, entered judgment on liability only in favor of the plaintiffs and after appropriate findings under Rule 54(b), Rules of Civil Procedure, 16 A.R.S., the defendant has appealed.

The facts giving rise to this litigation are not in dispute. On May 23, 1966, Palmer Industries, Inc., obtained a judgment against the plaintiffs in the sum of $1,223.20. Prior to December 6, 1967, Oscar C. Palmer and Corinne E. Palmer were the owners of all the outstanding capital stock of Palmer Industries, Inc. On that date, the Palmers entered into an agreement with AMXCO, Inc., a Texas corporation to sell all of their stock in Palmer Industries to AMXCO. This agreement, insofar as pertinent to the issues presented here, provided:

' § 6.01--Sale of Accounts Receivable. Notwithstanding any other provisions of this agreement, it is understood and agreed that, on the closing date, sellers (the Palmers) will purchase from the company (Palmer Industries, Inc.) all of the accounts receivable of the company then outstanding for a cash sum equal to the aggregate of such accounts receivable on the closing date as reflected on the books of the company.

' § 6.03--Collection of Accounts Receivable. AMXCO will cause the company (Palmer Industries, Inc.) to use its best efforts to collect such accounts receivable of the company to be purchased by sellers (the Palmers) . . ..'

It is agreed that the judgment obtained by Palmer Industries, Inc. against the plaintiff is covered by this provision of the agreement. On May 12, 1971, the defendant, as attorney for Palmer Industries, Inc., filed a judgment renewal affidavit affecting the Palmer Industries, Inc.-O'Brien judgment pursuant to A.R.S. § 12--1611 et seq. A.R.S. § 12--1612(b)(1) (1956) insofar as pertinent hereto provides:

'B. The judgment creditor, his personal representative or assignee may within ninety days preceding the expiration of five years from the date of the judgment, make an affidavit, entitled as in the action setting forth:

'1. The names of the parties, the name of the court in which docketed, if recorded the name of the county in which recorded, the date and amount of the judgment, The number and page of the docket in which entered by the clerk of the court, if recorded, the number and page of the book in which recorded by the county recorder, The name of the owner of the judgment, and his source and succession of title, if not the judgment creditor.' (emphasis added)

It is admitted that the affidavit filed by the defendant did not list the number and page of the Clerk's docket, but having been recorded, did contain the Maricopa County recording information. The owner of the judgment was shown on the renewal affidavit as Palmer Industries, Inc. The certificate of incorporation and license to do business of Palmer Industries, Inc., was revoked on April 19, 1971, by the Arizona Corporation Commission.

On August 10, 1972, the defendant caused a writ of garnishment to be issued under the Palmer Industries, Inc.-O'Brien judgment against the purported employer of Mr. O'Brien. This employer answered that it was not indebted to the judgment-debtor and no further action was taken by Palmer Industries, Inc. in connection with the writ.

Plaintiffs then filed their wrongful garnishment action on the basis that the previous judgment entered against them had not been renewed because of failure of the renewal affidavit to contain the clerk's docket and page number, and did not correctly show the true owner of the judgment. As previously indicated, the trial court granted summary judgment in favor of plaintiffs on the issue of liability alone.

The issue of whether the failure to include in the renewal affidavit, the clerk of court's docket and page number as ostensibly required by A.R.S. § 12--1612(B)(1), is, in our opinion, controlled by the case of Fay v. Harris, 64 Ariz. 10, 164 P.2d 860 (1945) and the statutory renewal language. In Fay v. Harris, supra, the contention was made that the renewal affidavit was invalid because the amount stated as being due on the judgment was incorrect. The court stated:

'It is true that plaintiff failed to show the exact balance due, through the errors in computation which we have mentioned. However, all the items of the judgment appeared, all of the credits were set out, the data appeared on the face of the affidavit, from which the exact balance could be determined. Obviously, the final amount set forth in plaintiff's affidavit as the amount due was not correct, but eliminating the charge for $112 (patently not proper), deducting the credit of $91.95 shown but which was not deducted, and then computing the interest from dates of returns, The exact balance could be ascertained.' (emphasis added) 64 Ariz. at 13, 164 P.2d at 861--62.

In our opinion, one of the purposes of A.R.S. § 12--1611 et seq. is to give notice to the judgment debtor and other interested parties of the identity of the judgment to be renewed. It is further our opinion that under the rationale of Fay v. Harris that if this information is capable of being ascertained from the face of the renewal affidavit, the technical omission or errors in the affidavit will not defeat the renewal of the judgment. See McBride v. McDonald, 25 Ariz. 207, 215 P. 166 (1923).

In the affidavit itself, the names of the parties appear, the civil cause number appears, the date of judgment appears and information as to where the judgment is recorded appears. In our opinion, this information sufficiently identifies the judgment sought to be renewed so as to make the omission...

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11 cases
  • Fid. Nat'l Fin., Inc. v. Friedman
    • United States
    • U.S. District Court — District of Arizona
    • March 2, 2012
    ...Indus. Comm'n of Ariz. v. Galloway, 224 Ariz. 325, 330 n. 5, 230 P.3d 708, 713 n. 5 (App.2010). For example, in Weltsch v. O'Brien, 25 Ariz.App. 50, 540 P.2d 1269 (App.1975), the court held that “the failure to include in the renewal affidavit information as to the book and page of the cler......
  • Goldfield Mines, Inc. v. Hand, 1
    • United States
    • Arizona Court of Appeals
    • October 29, 1985
    ...may, as part of the winding up process, file documents required to protect rights in corporate assets. See e.g., Weltsch v. O'Brien, 25 Ariz.App. 50, 540 P.2d 1269 (1975) (decided under § 10-364; corporation, as part of winding up, could file affidavit renewing judgment after dissolution). ......
  • Emerson Realty Group, Inc. v. Schanze
    • United States
    • Florida District Court of Appeals
    • November 29, 1990
    ...N.E.2d 958, 961 (Ind.App.2d Dist.1980); Tisdale v. Wheeler Brothers Grain Co., Inc., 599 P.2d 1104 (Okl.1979); Weltsch v. 0'Brien, 25 Ariz.App. 50, 540 P.2d 1269 (Ariz.App.1975), modified, 25 Ariz.App. 551, 545 P.2d 62 (Ariz.App.1975); Topham v. L.L.B. Corp., 493 S.W.2d 461 (Tenn.1973). Dis......
  • JC Penney v. Lane
    • United States
    • Arizona Court of Appeals
    • November 26, 1999
    ...in the judgment debtor's real property as to the exact condition of the judgment on the date it was renewed); Weltsch v. O'Brien, 25 Ariz. App. 50, 53, 540 P.2d 1269, 1272 (1975)(recognizing that one of the purposes of A.R.S. §§ 12-1611 to -1613 is to give notice to the judgment debtor and ......
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