Williams v. Sherman

• Decision Date: 28 February 1922
• Citation: 35 Idaho 169,205 P. 259
• Court: Idaho Supreme Court
• Parties: F. D. WILLIAMS, as Receiver of STATE SAVINGS BANK OF BUTTE, MONTANA, a Corporation, Plaintiff, and S. M. NIXON, Applicant for Writ of Assistance as Grantee in Sheriff's Deed, Respondents, v. E. H. SHERMAN and SINA E. SHERMAN, Appellants, and GRACE A. SHERMAN, CHARLEY CARLSON, GUST JOHNSON, HULDA JOHNSON, and the Unknown Heirs of JOHN C. FERGUSON, Deceased, and the Unknown Devisees of JOHN C. FERGUSON, Deceased, Defendants

205 P. 259

35 Idaho 169

F. D. WILLIAMS, as Receiver of STATE SAVINGS BANK OF BUTTE, MONTANA, a Corporation, Plaintiff, and S. M. NIXON, Applicant for Writ of Assistance as Grantee in Sheriff's Deed, Respondents, v. E. H. SHERMAN and SINA E. SHERMAN, Appellants, and GRACE A. SHERMAN, CHARLEY CARLSON, GUST JOHNSON, HULDA JOHNSON, and the Unknown Heirs of JOHN C. FERGUSON, Deceased, and the Unknown Devisees of JOHN C. FERGUSON, Deceased, Defendants

Supreme Court of Idaho

February 28, 1922

WRIT OF ASSISTANCE-BY WHOM GRANTED-CLERK-COURT-NOTICE-TO WHOM ISSUED-MOTION TO VACATE-DIRECT ATTACK-COLLATERAL ATTACK.

1. The granting of a writ of assistance is a judicial act, and cannot be performed by a clerk of the district court.

2. A writ of assistance granted by the clerk, without action by the court, is void and should be vacated on motion.

3. Notice of application for a writ of assistance must be given the person in possession.

4. The holder of a sheriff's deed on foreclosure is a proper party to apply for a writ of assistance, although not originally a party to the foreclosure proceeding.

5. A motion to vacate a writ of assistance on the ground it was granted by the clerk and without notice is a direct, not a collateral attack.

APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. James G. Gwinn, Judge.

Action in foreclosure. Appeal from order denying motion to vacate writ of assistance and order striking appellant's affidavit in support thereof. Both orders reversed.

Orders striking the affidavit and denying the motion to vacate the writ of assistance reversed. Costs awarded to appellants.

Miller & Ricks, for Appellants.

The affidavit of Sherman was not in fact a collateral attack upon the decree of the court. (Mills v. Smiley, 9 Idaho 325, 76 P. 783; O'Neill v. Potvin, 13 Idaho 721 93 P. 20, 257.)

In an application for writ of assistance, if the judgment be attacked, it is a direct and not a collateral attack. (Noble v. Harris, 33 Idaho 401, 195 P. 543.)

The right to a writ of assistance requires judicial action. The clerk of the district court is a ministerial officer and is never a judicial officer. (Creighton v. Paine, 2 Ala. 158; Howard v. Bond, 42 Mich. 131, 3 N.W. 289; Tucker v. Stone, 99 Mich. 419, 58 N.W. 318; Comer v. Felton, 61 F. 731, 10 C. C. A. 28; Keil v. West, 21 Fla. 508; Baker v. Pierson, 5 Mich 456; Ketchum v. Robinson, 48 Mich. 618, 12 N.W. 877.)

The writ of assistance should never issue except on notice to the person in possession, as intervening rights not existing between the parties to the decree may be involved, or subsequent agreements as to possession may exist between the parties to the suit which may affect the right to the writ. (McLane v. Piaggio, 24 Fla. 71, 3 So. 823; Hooper v. Yonge, 69 Ala. 484; City of San Jose v. Fulton, 45 Cal. 316; Ray v. Trice, 49 Fla 375, 38 So. 367; Jones v. Hooper, 50 Miss. 510, 516; Escritt v. Michaelson, 73 Neb. 634, 10 Ann. Cas 1039, 103 N.W. 300, 106 N.W. 1016; Fackler v. Worth, 13 N.J. Eq. 395; Blauvelt v. Smith, 22 N.J. Eq. 31; Knight v. Houghtalling, 94 N.C. 408, 411.)

When a writ of assistance has been improperly granted, the court, on motion, is bound to correct the wrong by restoring the possession. (Trammel v. Simmons, 8 Ala. 271; Wiley v. Carlisle, 93 Ala. 237, 9 So. 288; Skinner v. Beatty, 16 Cal. 156; City of San Jose v. Fulton, supra; Henderson v. McTucker, 45 Cal. 647; Ray v. Trice, supra; New York Life Ins. & Trust Co. v. Cutler, 9 How. Pr. (N. Y.) 407; Coor v. Smith, 107 N.C. 430, 11 S.E. 1089; Herr v. Sullivan, 26 Colo. 133, 56 P. 175.)

F. L. Soule and C. R. Moon, for Respondents.

"All proceedings taken with a view to enforcing the judgment or decree are collateral thereto, and attacks made upon the judgment in the course of such proceedings are collateral." (15 Standard Ency. of Proc. 382, and cases cited.)

A motion to quash writ of assistance is a collateral attack on a judgment. (Bennett v. Roys, 212 Ill. 232, 72 N.E. 380.)

The decree contained an order directing the parties to it to surrender the premises on production of sheriff's deed. Here was a "decretal order," and where the decree contains such order no further order is necessary for issuance of writ against the parties to the action. (Montgomery v. Tutt, 11 Cal. 190, 191; Montgomery v. Middlemiss, 21 Cal. 103, 81 Am. Dec. 146; 27 Cyc. 1740; 19 R. C. L. 638.)

No notice of the application for the writ is required, either where the defendants against whom it is issued were actually present at the time of the application for the writ and resisted it, or where the writ is sought against the party to the decree and the decree contains an order directing the party to the suit, and those holding under them, to surrender the premises on production of sheriff's deed. (2 Wiltsie on Mortgage Forecl., 3d ed., sec. 726; 27 Cyc. 1740; Montgomery v. Tutt, 11 Cal. 190, 194; McLane v. Piaggio, 24 Fla. 71, 3 So. 823; New York Life Ins. & Trust Co. v. Rand, 8 How. Pr. (N. Y.) 35; Coor v. Smith, 107 N.C. 430, 11 S.E. 1089; New York Life Ins. & Trust Co. v. Cutler, 9 How. Pr. (N. Y.) 407; Lynde v. O'Donnell, 12 Abb. Pr. (N. Y.) 286; Lynde v. O'Donnell, 21 How. Pr. (N. Y.) 34; N.Y. Life Ins. & Trust Co. v. Rand, supra; Kershaw v. Thompson, 4 Johns. Ch. (N. Y.) 609; Huguenin v. Baseley, 15 Ves. Jr. 180, 33 Eng. Reprint, 722; Kessinger v. Whittaker, 82 Ill. 22.)

MCCARTHY J. Rice, C. J., Dunn, J., and Budge, JJ., concurring, LEE, J., Specially Concurring.

OPINION

MCCARTHY, J.

On September 22, 1916, the trial court entered a decree of foreclosure covering the land involved in this controversy. It contained an order that the purchaser at the foreclosure sale be let into possession, and that any of the parties to the action, or any person coming into possession under them, should deliver possession to such purchaser, on production of the sheriff's deed. Respondent F. D. Williams, receiver, was the plaintiff, and appellants were the defendants in said foreclosure action; appellants made no appearance, and judgment was by default. On October 28, 1916, the land was sold to respondent F. D. Williams, receiver, and the sheriff's certificate of sale issued to him. Respondent Nixon purchased the certificate of sale and, upon the expiration of the time for redemption, secured a sheriff's deed to the land on July 9, 1918. On August 14, 1920, he filed an affidavit for a writ of assistance. No notice was given to appellants, but the clerk of the court issued the writ of assistance ex parte. On August 16, 1921, appellants made a motion to quash the writ of assistance supported by the affidavit of appellant E. H. Sherman. Among other grounds of said motion, appellants stated that the writ of assistance was issued by the clerk of the court without an order of the court, that it was issued ex parte without notice, and to one who was not a party to the action. Thereafter respondent Nixon made a motion to strike said affidavit. The trial court sustained his motion to strike and denied appellants' motion to quash the writ. From these orders this appeal is taken.

Among other specifications of error, appellants contend that the writ of assistance was improperly issued for the reasons just above stated. The power of the court to issue a writ of assistance in this state does not arise from any statute, but from the practice which obtained at common law. This power has always been exercised by courts of equity to place a purchaser of mortgaged premises in possession, after a decree of foreclosure, the expiration of the period of redemption and the execution and delivery of the sheriff's deed, where the possession is withheld by any party bound by the decree. (Harding v. Harker, 17 Idaho 341, 134 Am. St. 259, 105 P. 788; 27 Cyc. 1740 (C).) The exercise of the power to grant the writ rests in the sound discretion of the court. (19 R. C. L., sec. 455, p. 638; City of San Jose v. Fulton, 45 Cal. 316.) We have been cited to no authorities holding that it is a ministerial act which can be performed by the clerk of the court. The writ, having been issued by the clerk on his own authority, is void. Respondents' counsel have cited us to some authorities holding that, if the decree of foreclosure contains an order for the surrender of the property to the purchaser, no further order to that effect is necessary before the writ issues. Even these authorities do not go to the length of holding that the writ can be issued by the clerk. The authorities are in conflict as to whether the writ can be issued ex parte without notice to the party in possession. Some authorities hold that it can be so issued where the decree contains a provision for surrender of possession, and the one in possession was a party to the foreclosure proceeding. Other authorities hold that it is better practice to give notice to the party in possession. Other authorities hold that the giving of notice is necessary. (San Jose v. Fulton, supra; Hooper v. Yonge, 69 Ala. 484; Knight v. Houghtalling, 94 N.C. 408; Fackler v. Worth, 13 N.J. Eq. 395.) It must be remembered that the issuance of the writ of assistance does not immediately follow the decree of foreclosure, but the period of redemption intervenes. The reason given for requiring notice is that the rights of the parties may have changed by reason of agreement, or circumstances, arising between the rendition of the judgment, and the application for the writ of assistance. We conclude that the better and more orderly practice, and the one more likely to protect the rights and interests of all concerned, is to require the giving of notice of application for the issuance of the writ to the party in possession. It was error to deny the motion to quash the writ. Appellant's...