Davis v. Chilson , 48 Ariz. 366 ( 1936 )

I am sorry that I cannot concur in the majority opinion. In addition to the reasons I gave in my dissenting opinion in Harrington v. White, ante, p. 291, 61 P.2d 392, decided October 5, 1936, as to why rule 7 of the Uniform Rules for the Superior Courts should not be construed as mandatory when the departure therefrom is merely technical, there are other very good and cogent reasons for not invoking such rule in the present case.

In the first place, the motion by defendant Davis was one to quash the execution, set aside the sale and cancel the certificate of sale on several grounds, but none of which grounds suggested that rule 7 had not been observed in the entry of judgment. If this so-called irregularity was ever called to the attention of the trial court, it was outside the motion which was directed entirely to the avoidance of the execution and the sale thereunder. The invalidity of the judgment is first raised in this court.

In the second place, the garnishment judgment was not against defendant Davis, but against the garnishee, Alabam's Freight Company, and was entered upon the garnishee's answer which was not controverted. There is no sound reason why rule 7 should be construed as requiring "the one in whose favor the decision is to be" to serve a copy of the judgment on Davis, the judgment debtor, because the garnishment judgment ran against the garnishee and not Davis. It is true rule 7 provides for such service on the "opposite party" and by stretching the rule it might be made to include the garnishee debtor, but it was evidently intended to require service only on the one against whom the judgment was entered. The garnishee, Alabam's Freight Company, is not complaining of not being served with such copy of the judgment before its entry.

The statute, section 4271, Revised Code of 1928, was strictly complied with by the court and sheriff. It reads:

"Where the garnishee is a corporation and it appears from the answer or otherwise, that the defendant is or was when the writ of garnishment was served, the owner of any shares of stock in such corporation, or of any interest therein, the court shall render judgment ordering the sale under execution in favor of the plaintiff against the defendant of such shares or interest of the defendant, or so much thereof as may be necessary to satisfy such execution. The sale shall be conducted as other sales of personal property under execution, and the officer making such sale shall execute a transfer of such shares or interest to the purchaser, briefly reciting the judgment under which the same was sold. Such sale shall pass to the purchaser all the right, title and interest which the defendant had in such shares of stock, or in such corporation, and the officers of such corporation shall enter such sale and transfer on the books of the corporation as if the same had been made by the defendant."

Notwithstanding this clear and plain direction to the court and the officers making the sale, and the force and effect of their compliance therewith in passing title, the majority decision is that because rule 7 was not complied with, although no complaint of such non-compliance was made to the trial court and none is made here by the garnishee, everything must fall. Section 4271,supra, provides the court "shall render judgment ordering the sale under execution," when certain facts are present, and it may be doubted if this court by rule can change or modify the statute as rule 7 undertakes.

It seems to me that the decision is absurd, but that is not the worst of it. When the case reaches the trial court the question is: What can be done? The plaintiff Chilson is no longer interested, he having received his money through the execution sale to the Shaws. It is not likely that he will "present to the judge a proposed form of judgment within five days thereafter, and serve a copy thereof on the opposite party," and unless he does, according to the majority decision, the court is without jurisdiction to enter any judgment. Just how this inexorable rule 7 can be hurdled and all parties treated fairly and equitably does not appear. Such rule does not permit any person except the person to be favored with the judgment to give the notice therein prescribed.

Davis, however, is not without remedy. The majority has said "the judgment upon which the execution and sale were based was void ab initio." A void judgment is no judgment. All persons acting under it or an execution issued under it are trespassers. The plaintiff, the sheriff, the purchasers and their agent are guilty of conversion and are liable for all the damages the owner of the stock may have suffered. If the plaintiff, the sheriff, and the purchasers had acted outside of the law and in disregard of the law, the law's penalties for so doing should follow, and they should be required to pay the owner any damages he may have suffered. But I insist that the failure of plaintiff to leave a copy of the proposed judgment with the court and the opposite party, as provided in rule 7, when no injury or harm could or did result to the defendant from such failure or neglect, should not be accepted by this court as a ground to nullify everything done thereunder, especially when the defendant in his motion to set aside the sale has not even mentioned such omissions as a reason for his motion, and when the record rather conclusively shows that defendant was not any too diligent in looking after the court proceedings that were had to subject his stock to the payment of his debts.

Since rule 7 was promulgated, purchasers of both personal and real property under execution sales have no title under the majority decision unless the provision of such rule as to notice has been strictly followed. And the pity of it is that this court should have ever ruled that the observance of rule 7 as to giving notice was jurisdictional, because it is not.