174 P. 404 | Cal. Ct. App. | 1918
For convenience, the action first above entitled,Craig v. Stansbury, will throughout this opinion be referred to as the action; and the second matter, Stansbury v. SuperiorCourt, will be alluded to as the mandate proceeding. The action was commenced for the purpose of recovering on a promissory note, the plaintiff had judgment, and the defendant appeals. The appeal is not yet before us for decision; but the appellant asks for the issuance of a writ of supersedeas, upon his claim that the execution of the judgment had been stayed by the giving of bond, in connection with the appeal, before the making of a certain sale by the sheriff on execution, as well as upon grounds other than the ground that execution had been stayed. The application is made upon notice to the purchaser at the sale, as well as to the respondent in the action. After the appeal was taken, but before the application for a supersedeas was filed in this court, the appellant presented to the trial court, in the action, a motion to set aside the execution sale. That motion was made upon all the grounds now placed before us as a basis for the application for the supersedeas. The trial court entered a dismissal of the motion on the ground *670 that the "court has not jurisdiction to entertain" it "on the facts stated in the notice of motion." Thereupon the appellant instituted the mandate proceeding for the purpose of compelling the trial court to proceed to hear and determine the questions involved in the motion and an alternative writ was allowed.
Our first labor is to determine whether asupersedeas will issue out of this court, as demanded. It is to be observed, at the outset, that the form of relief now requested has had its most frequent use in those cases in which there has been a stay of the execution of a judgment appealed from, and in which the trial court has threatened to take some step toward an enforcement of the judgment, notwithstanding the operation of the stay (McAneny v. Superior Court,
We are next to inquire whether the appeal had been perfected and the stay of execution imposed before the completion of the sheriff's sale; and, in determining this question, the property sold having been personalty, we consider the conclusion of the sale as being at least as early as the time of the issuance of the sheriff's certificate of sale. (Code Civ. Proc., sec. 700a.) The notice of appeal and the stay bond were filed with the trial court together, in point of time, and the execution sale was conducted, including the issuance of the certificate of sale, on the same day. The question of priority, as between the sale and the perfecting of the appeal, is therefore one of hours only. This fact is conceded by the entire record before us, which consists of voluminous affidavits and of some testimony from the witness-stand. It would serve no useful purpose to review the evidence on this question. We have examined it carefully and from our examination we now find and declare that the notice of appeal and bond were filed after the issuance of the sheriff's certificate of sale. The sale, therefore, worked no violation of any right of stay of execution.
We have already remarked that we are asked to set the sale aside on grounds other than the one that a stay of execution was in force at the time the sale was made. We have yet to determine whether we may entertain the motion on those grounds, which, speaking in general terms, are that the sale was conducted in furtherance of a conspiracy between all those who were parties to the sale, formed to cause a sacrifice of the property under levy at an inadequate price and for other purposes claimed by the appellant to be illicit and to work a fraud upon his rights. The appellant presents to us no authority and shows us no good reason which point to the power in an appellate court to set aside, by supersedeas, an execution sale completed before the court acquired jurisdiction of any appeal from the judgment for the enforcement of which the sale was made. The general character of the remedy, as that character is above stated, seems to prevent its application in such an instance. It is true, in addition to what we have already said concerning supersedeas, that the supreme court has allowed its use to create a stay of execution where none had been imposed by appeal or by bond *672
given pursuant to appeal (Hill v. Finnigan,
We now turn to the mandate proceeding, in order to determine whether a peremptory writ shall issue requiring the trial court to proceed with the hearing of the motion to set aside the execution sale, on grounds other than the ground that a stay of execution was in effect at the time the sale was made, of which latter ground we have already disposed. The supreme court early declared that a motion to set aside an execution sale could not be entertained where the purchaser at the sale was a stranger to the judgment under execution (Bryan v. Berry,
We are of the opinion that such matters cannot properly be considered on mere motion. Such a case does not seem to come within any decision of the supreme court authorizing, either tacitly or by direct decision, the setting aside of execution sales in that summary manner. Such motions are usually based upon affidavit, and the number of persons concerned in the charge here presented, the complexity of the charge, and the fact that it has to do with many matters extraneous to the sale itself — thus, as we have already said, presenting a case entirely different from one of mere irregularity in a sale — all seem to frame a controversy which ought not to be, and which in justice to all concerned could not be, determined upon such an informal presentation. It is said in Freeman on Executions, third edition, section 310: "Where grounds exist for vacating a sale, which rest not in irregularity of proceeding, but in fraudulent devices practiced upon the complainant, or in accident or mistake for which he has suffered, and from which he is entitled to relief, he may, before conveyance is made to the purchaser, proceed either by motion in the original case or by bill in equity. In this, however, as in other matters within the *675 concurrent jurisdiction of law and equity, the choice and propriety of remedy are governed by considerations of adequacy and expediency; and since the importance of these considerations depends quite usually upon the circumstances of the case in hand, it is impossible to deduce from the cases an inflexible rule determining the proper choice of remedy where the end sought is the vacation of an execution sale. The proper criterion for determining this matter is found in the nature of the question, and the character of the issue, which must be weighed and decided before the relief sought can be granted or denied. Fraud, mistake, irregularities, and inadequacy of price may justify the setting aside of an execution sale upon motion; but the nature of the proceeding by motion renders it applicable with propriety only to a minority of the cases where such grounds for vacation are set forth. If a conveyance has been executed, and the purchaser thereby vested with the legal title, it is doubtful whether he can be divested of it by motion. If the charge is that the sale ought to be vacated for matters not apparent from an inspection of the proceedings, such as combination to depress the bidding, or any other species of fraud, or for any misconduct on the part of the officer conducting the sale, the better opinion is that the purchaser's title cannot be divested otherwise than by an independent suit in equity against him."
The motion, addressed to this court in Civil No. 2703 and demanding that the execution sale be set aside, is denied. The alternative writ of mandate, in Civil No. 2712, is set aside and the application for a peremptory writ is refused.
Conrey, P. J., and James, J., concurred.
Petitions to have the causes heard in the supreme court, after judgment in the district court of appeal, were denied by the supreme court on August 22, 1918. *676