Cable v. Magpie Gold Mining Co.

22 S.D. 566 | S.D. | 1909

WHITING, J.

This case comes on for hearing upon appeal fr,om an order of the circuit court refusing to quash a levy under a writ-of execution, and the facts, so far as material to this hearing, are as follows: The plaintiff and respondent herein obtained a judgment against the defendant corporation on December 15, 1903. James C. Sherman, designated as intervener in the papéis in this court, obtained a judgment against the same corporation on July 10, 1903, and it was docketed on July xi, 1903, thus becoming a lien against the real property of the defendant corporation. March ix, 1904, the plaintiff in' the action at bar placed execution in the hands of sheriff, and levy was made upon certain machinery, tools, and supplies of the defendant corporation situated in the county where these two judgments were rendered and recorded. On March 18, 1904, application was made in the name of the defendant corporation for an order to vacate and quash said levy and to prevent the sale of said machinery as personal property on a 10 days’ notice without right of redemption. ‘In support of this application, affidavit was filed setting forth that the sheriff was advertising the levy and sale as one of personal property, and setting forth facts which the said corporation claimed showed the property levied upon to he fixtures, and as such a part of the real estate of said defendant corporation. There was an answering affidavit setting forth facts which it was claimed showed such property -not to be fixtures, but to be subject to sale as personal property. Other questions were raised by the affidavits which 'are immaterial here. On March 22d, this application was heard and denied by the circuit qourt, and an order signed to that effect. On March 25th, the judgment creditor under the prior judgment, James C. Sherman, attempted to unite with the defendant corporation 'in a renewal of said application to quash said writ designating himself as intervener. No formal application to intervene appears to have been made, and no order of the c.ourt was ever made authorizing any intervention. Affidavits were filed both for and against such application, and such affidavits show-the facts as to the prior judgment, and also set forth the facts claimed by each party in relation to the nature of the property levied upon, whether real or personal. This new application coming on for hearing, the court on April 12, 1904, again made an order refusing to quash the levy under said writ, and allowed the sale of said property to be made as personal property on 10 days’ notice without right of redemption, and it is from this last order that the appeal was taken.

The defendant claims right to move to quash writ under facts stated and right to appeal from order denying motion. Sherman claims: That, as a “party aggrieved” by ruling of circuit court 011 motion to quash, he had a right of appeal; that before he could appeal he had to become a party of record; that therefore he had to unite in motion in the lower court to become “party”; and that he had a right to so unite in said motion for the reason that he was an “aggrieved” person, and as such had a right to be placed where he was an “aggrieved party.” See propositions 3, 4, and 5, appellant’s brief. He cites cases which he claims support his contentions, but we have examined same and are unable to agree with him. Some of these that at first reading might appear to advance some such propositions are found to be based on some special proceedings provided by statute. Appellant has not referred us to’ an}'' provision of our statute authorizing any procedure of this kind, and in fact has cited no provision authorizing a motion to quash by the judgment debtor. It is well established that a judgment debtor can move to quash a writ irregularly issued tor to quash a levy where officer has proceeded irregularly.. There is no claim of irregularity in issuance of writ or in manner .of levying or proceeding ,on said levy. The levy notice and all steps of sheriff are regular.

Could then the judgment debtor have the lower court determine the nature of the property, whether real or personal, on motion ? Even admitting that court would have the right to have the levy quashed if it was admitted that the property was personal (which point we do not pass on), should a court determine such a disputed fact on affidavits? We think not. Our own court seems to have settled this question in Froelich v. Aylward, 11 S. D. 635, 80 N. W. 131, where, quoting from Dorsey v. Hall, 5 Dak. 505, 41 N. W. 471, they use these words: “While a motion to set aside or quash an execution may be made to the court -which issued it for errors and irregularities which affect the writ itself, the same is not true in the absence of statute regarding errors and irregularities arising out of the acts of the officer executing the writ. Wc are therefore of the opinion that the respondent’s remedy was by a proper action in court, in which issues could have been joined, and the action heard in the usual mode prescribed for the trial of issues of law and fact.” And as to the rights of a stranger to the record, as Sherman was in case at bar,- to make a motion to quash a levy we -would cite as denying the .said right Hitchcock in re People v. Rooney, 17 Ill. 231, and cases cited therein; State v. Borden, 49 N. J. Law, 527, 13 Atl. 42, and cases cited therein. In this case the court say: “Assuming -that the issuance of the second execution was illegal, * * * the question arises whether the prosecutor occupies a position from which he can attack it in the manner which he has adopted in the present instance. He is n,ot a party to the action in which the writ was issued. It is true that the writ is a menace to 'the property of which he claims the ownership by virtue of his purchase, under the former execution. He occupies the position of an owner of property upon which a levy had been made under an execution issued upon a judgment against another person. A disturbance of his property by color of such proceedings renders all parties participating in such act amenable to an action at law. Herm. Ex’ns, 629. And the aid of a court of equity may be invoked in some instances t,o restrain a sale. 1 High, Inj. §§ 144, 187; Herm. Ex’ns, 610, 611. -But in the language of Mr. Herman, it must be understood that the execution of final process concerns only the debtor and the creditor, the plaintiff and defendant, and they alone are interested in the regularity of the .officer's proceedings. ''Strangers, if affected, have means provided by law for enforcing or protecting their rights.”

The order appealed from is affirmed.