Williams v. Sherman

• Decision Date: 30 June 1921
• Parties: F. D. WILLIAMS, as Receiver of State Savings Bank of Butte, Montana, a Corporation, and S. M. NIXON, Respondents, v. E. H. SHERMAN and SINA E. SHERMAN, Appellants
• Court: Idaho Supreme Court

199 P. 646

34 Idaho 63

F. D. WILLIAMS, as Receiver of State Savings Bank of Butte, Montana, a Corporation, and S. M. NIXON, Respondents, v. E. H. SHERMAN and SINA E. SHERMAN, Appellants

Supreme Court of Idaho

June 30, 1921

APPEALS-ORDER-MOTION TO QUASH-WRIT OF ASSISTANCE-NECESSARY PARTY-NOTICE OF APPEAL-ADDRESS NOT ESSENTIAL-LIMITED TO PARTIES NAMED.

1. Upon appeal from an order denying a motion to quash a writ of assistance issued in favor of the holder of a certificate of sale on foreclosure and of a sheriff's deed based thereon, the latter is a necessary party.

2. While an address preceding the body of a notice of appeal is not essential to the validity of the notice, yet if such address is given, the notice of appeal is limited in its effect to those parties to whom it is addressed.

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

Action to foreclose mortgage. Motion to quash writ of assistance denied. Appeal dismissed.

Appeal dismissed. Costs awarded to respondent.

Miller & Ricks, for Appellants.

F. L Soule, for Respondent Nixon.

Counsel cite no authorities on points decided.

BUDGE J. Rice, C. J., and McCarthy, Dunn and Lee, JJ., concur.

OPINION

BUDGE J.

This is an appeal from an order denying appellants' motion to quash a writ of assistance issued by the district judge in the above-entitled cause, directing the sheriff of Fremont county to remove appellants from the NE. 1/4 of sec. 13, T 15 N., R. 42 E., B. M., and to deliver said premises into the possession of S. M. Nixon.

The material facts disclosed by the record are briefly as follows: On March 1, 1906, E. H. Sherman and Grace A. Sherman, then husband and wife, deeded to the State Savings Bank of Butte, Montana, approximately 1,500 acres of land in Fremont county, Idaho; that the description in the deed included the NE. 1/4 of sec. 13, T. 15 N., R. 42 E., B. M., which at that time was unsurveyed public domain; that on January 10, 1907, E. H. Sherman and Grace A. Sherman were divorced, and subsequently in the same year he married Sina E. Sherman; that in 1914 the above-described land was surveyed; that on May 20, 1915, a plat of the survey was filed in the land office; that on September 29, 1915, E. H. Sherman made application to enter said land under the homestead laws, which was accepted by the Land Office at Blackfoot, and he and Sina E. Sherman entered into possession of the land; that on March 1, 1916, F. D. Williams, as receiver of the bank, commenced an action against E. H. Sherman, Sina E. Sherman, Grace A. Sherman et al., to have the deed declared to be a mortgage, to have the same foreclosed, the property described therein sold, and the proceeds derived therefrom applied in payment of the indebtedness secured thereby; that service was made by publication and on September 22, 1916, judgment of foreclosure was awarded to Williams by default; that the land was sold on October 28, 1916, and a sheriff's certificate of sale issued to Williams; that Nixon purchased the certificate of sale from Williams on October 20, 1917, and, the time for redemption having expired, secured a sheriff's deed to the land on July 9, 1918; that Nixon presented the sheriff's deed to E. H. and Sina E. Sherman on July 30, 1918, and demanded possession of the premises, which was refused; that on August 30, 1919, he made application for a writ of assistance, which was granted and placed in the hands of the sheriff, who executed the same by removing the Shermans from the premises; that on April 9, 1920, appellants moved to quash the writ; that this motion was denied on May 15, 1920, and on June 18, 1920, appellants filed a notice of appeal and an undertaking on appeal in the district court; that the notice of appeal was addressed to "the above-named plaintiff and to his attorney, F. L. Soule, and to the clerk of said court," and a copy thereof served upon F. L. Soule as attorney for plaintiff and respondent.

Respondent Nixon has moved to dismiss the appeal upon the ground that: "The notice of appeal itself discloses that F. D. Williams, plaintiff and respondent, is the only person served with such notice of appeal; that all adverse parties in this proceeding have not been served with notice of appeal, to wit, S. M. Nixon, and that the record discloses that S. M. Nixon is the real party in interest and the real adverse party in this proceeding."

Upon appeal from an order denying a motion to quash a writ of assistance, issued in favor of the holder of a certificate of sale on foreclosure and of a sheriff's deed based thereon, the latter is a necessary party. In a similar case, the supreme court of California held that "In foreclosure, after judgment and sale, the purchaser and the party against whom a writ of assistance was ordered are the only necessary parties to an appeal from that order." (Hibernia Savings & Loan...