Curtis v. Campbell , 105 Idaho 705 ( 1983 )

SHEPARD, Justice.

This is an appeal from orders of the district court denying appellant Campbell’s various motions to quash writs of execution and a writ of assistance. We affirm.

On July 23,1979, plaintiff Curtis obtained a judgment against Campbell for $9,051.58 plus costs. No appeal was taken from that judgment and no question is raised here regarding its validity or amount. Curtis has only sought to collect that judgment and his patience is finally rewarded. The patience of the district judge has also been exemplary. For the following two years Curtis attempted to obtain satisfaction of the judgment through negotiations and thereafter by obtaining seven successive writs of execution. In March 1981, after previous writs had been either quashed by court order, returned satisfied in part or returned satisfied, the sixth writ of execution was issued claiming Campbell still owed $2,813.73. Pursuant thereto, the sheriff gave notice that Campbell’s used mobile home would be sold at public auction. Campbell asserts that the sheriff would not allow him to bid beyond the amount of cash he, Campbell, had on hand and Curtis bid on the mobile home of $600. On June 1, 1981, the court heard Campbell’s motion to quash the sixth writ of execution and ruled that Campbell still owed $1,138.69 plus interest, and that if Campbell paid such amount within 30 days, the mobile home, although sold, would be released from the sheriff’s levy. Campbell made no such payment.

On July 9, 1981, a seventh writ of execution was issued against Campbell in the amount of $615.19; that amount was garnisheed from Campbell’s bank account and $549.39 was paid to Curtis. Thereafter Curtis received a certificate of sale for the mobile home from the sheriff and when Campbell refused to vacate the home, Curtis petitioned the district court for a writ of assistance. Campbell paid $650 into court, moved to declare the sheriff’s return void, and moved for entry of satisfaction of the judgment. On October 6, the court ruled that there had been no appeal from his order of June 1, 1981, that Campbell’s motions were denied, and that the sums recovered from the garnishment of Campbell’s bank account and from the sale of the trailer satisfied the judgment. Forty-two days after the issuance of that order of October 6, this appeal was filed “from post trial motions and orders, including the order dated October 6, 1981 ...” The only matters properly before us are those which were before the district court in its order of October 6, 1981.

We view the order of the court dated June 1, 1981, as the equivalent of an order confirming the execution sale. As such it cured all irregularities in the sale, excepting only jurisdictional defects, and that order was final and appealable. Casa del Rey v. Hart, 31 Wash.App. 532, 643 P.2d 900 (1982). Since no timely appeal was perfected from that order, we consider none of Campbell’s assertions regarding irregularities in the execution sale.

Campbell asserts that the sheriff did not make a timely return on the writ of execution dated March 23, 1981, and hence it is void. We disagree. A late return on a writ of execution does not affect the validity of a sale made pursuant to a writ of execution and the provisions regarding a return date are directory and not mandatory. Failure to comply with such provisions does not affect the title of the purchaser at an execution sale, particularly where no intervening third party rights are involved. Gandiago v. Finch, 46 Idaho 657, 270 P. 621 (1928); Inman v. Brown, 59 N.M. 196, 281 P.2d 474 (1955).

Campbell also asserts that because the seventh writ of execution was issued prior to the time there had been a return on the sixth writ, the sixth writ and the sale thereunder are both void. We disagree. A party will not be heard to complain of irregularities in execution proceedings when those irregularities are not prejudicial. Inman v. Brown, supra. See Woodley-Griggs Boiler Repair, Inc. v. Sanders, 626 S.W.2d 410 (Mo.App.1981); Bertonazzi v. Mechanics Nat. Bank, 379 Mass. 920, 400 N.E.2d 867 (1980); Moore v. Dade Glass & Mirror Co., Inc., 357 So.2d 221 (Fla.App.1978). When a writ of execution issues with a still-unreturned prior execution outstanding, the second writ is at most voidable, and a motion to quash should be denied if the matter which caused issuance of the writ to be erroneous or irregular has been removed. Mosher v. Ganz, 42 Ariz. 314, 25 P.2d 555 (1933).

We hold that the court’s issuance of the writ of assistance was proper and its order is affirmed. The writ of assistance is an equitable remedy and the power to issue such writ stems from the need of the court to enforce its own decrees. United States Nat. Bank of Oregon v. Chavez, 281 Or. 329, 574 P.2d 647 (1978). The writ of assistance is a common law remedy to place a purchaser of property at a sheriff’s sale into possession when that possession is withheld by any party bound by the decree. See Eagle Rock Corp. v. Idamont Hotel Co., 60 Idaho 639, 95 P.2d 838 (1939). The only question to be adjudicated when the propriety of such writ is an issue is “whether applicant has a right, as against the party in possession to use the writ to obtain possession.” Id. 60 Idaho at 648, 95 P.2d at 841, and if the party in possession does not have a colorable claim of right to possess the property, the writ should issue. Booth v. Shepherd, 63 Idaho 523, 123 P.2d 422 (1942). We find no question but that the court had the right to. enforce its decree and writ of execution and that as between Campbell and Curtis by virtue of the sheriff’s sale, the title was held by Curtis.

Although the district court did not err in ordering the entry of satisfaction of judgment, we note that pending this appeal Campbell has remained in possession of the mobile home; he is therefore liable for the reasonable rental value thereof for the period beginning April 3,1981 and ending when possession is relinquished to Curtis. See Frost v. Eggeman, 638 P.2d 141 (Wyo.1981).

The orders of the district court are affirmed. However, the cause is remanded to the district court for dissolution of the stays heretofore granted and, as noted herein, for a determination of the reasonable rental value of the mobile home during the period indicated and for an additur in favor of Curtis for that amount. Costs to respondent. Since Curtis has appeared in this appeal pro se no attorney fees are allowed.

BAKES, J., concurs. DONALDSON, C.J., concurs in the result.