105 P.2d 731 | Idaho | 1940
August 24, 1928, respondents Henry and wife, executed and delivered to Anna E. Donaldson a real estate mortgage to secure payment of $1,500. Mr. Henry and wife thereafter sold the property to respondents H.E. Severns and wife who assumed and promised to pay said mortgage debt. Thereafter Mrs. Donaldson foreclosed the mortgage, praying "that the plaintiff have judgment and execution against the defendants Orin M. Henry and H.E. Severns for any deficiency which may remain after applying all the proceeds of the sale of said premises properly applicable to the satisfaction of said judgment. . . . ."
Respondents were personally served and defaulted. The decree of foreclosure recites:
"That there is unpaid and past due on said notes, the principal sum of $1100.00 balance, with interest thereon in the sum of $132.00; that in addition thereto there is justly due, owing and unpaid to the plaintiff from the said defendants the sums of $7.50 for extension of abstract, $2.30 insurance prepaid, deferred construction water assessments.
"That the aggregate of said sums, towit, the sum of $1377.65, together with the sum of $100.00, adjudged hereby to be, and awarded as a reasonable attorney's fee, an aggregate of $1341.80 is, and constitutes a first and prior lien against all of the following described real estate . . . . (describing it); that such lien arises from that certain mortgage dated August 24, 1928, made, executed and delivered by the said defendants Orin M. Henry and Eunice Henry, his wife to the plaintiff herein covering the said premises and securing the promissory notes aforesaid. . . . .
"That the defendants H.E. Severns and Jane Doe Severns, his wife, claim under, or through the defendants Orin M. *638 Henry and Eunice Henry, and have assumed and promised to pay the mortgage debt for the benefit of the plaintiff."
And ordered the sheriff to sell the aforesaid premises, concluding:
"It is further decreed that in event the said premises fail to bring sufficient on the said sheriff's sale to discharge the moetgage debt aforesaid with the costs and expenses of sale, that deficiency judgment be docketed herein in conformity with law and the practice of this court."
The sheriff's return, September 7, 1933, showed a sale of the premises to one J.L. Donaldson, appellant herein, for the sum of $50, deductions therefrom of fees, commissions and expenses amounting to $31.50 leaving a balance of $18.46 which he credited upon the judgment, and then following the sheriff's signature is this computation:
"Judgment ..................................$1,356.80 Interest ................................... 6.34 Sheriff's Costs ............................ 31.54 ----------- Total $1,394.68 Less Bid placed by Purchaser ............... 50.00 ----------- Deficiency $1,344.68
There is nothing to indicate where this entry was originally made or by whom. The only other reference to a deficiency in the transcript is a copy of the clerk's docket:
"JUDGMENT DOCKET, DISTRICT COURT, CANYON COUNTY,
IDAHO JUDGMENT
Page of JUDGMENT JUDGMENT AMOUNT TIME OF ENTRY Judgment DEBTOR CREDITOR DOLLARS CTS. Month Day Year Book -------------------------------------------------------------------------- Henry, Orin M., Anna E. Foreclosure 8 4 33 13-19 Eunice Henry, Donaldson Costs 15 00 his wife, H.E. Severns and Jane Doe Severna, his wife.
Satisfaction of Judgment Appeal — When WHEN ENTERED Taken JUDGMENT OF APPELLATE COURT Month Day Year Month Day Year Remarks *639
------------------------------------------------------------------------- O of S issued 8/8/33 Order staying Execution Satisfied in the amount 9/12/33 of $50. leaving a Order vacated 11/21/33 deficiency of $1344.68 as per Sheriff's return of 9/7/33. J.C. SMITH, Clerk By B.L. NEWELL Dep ASSIGNMENT OF THIS INSTRUMENT IS RECORDED ON PAGE 42 BOOK 11 OF ASSIGNMENTS. J.C. SMITH Ex. Officio Recorder C.D. SOPER Deputy Deficiency Judgment declared void cancelled by Court Order 10-31-39 F. KUEHN, Jr. By H. FELTON, Dep." September 12, 1933, the court entered an ex parte order staying execution on the deficiency, stating in part as follows:
"and whereas the court entertains grave doubt as to the validity of said Deficiency Judgment, it is ordered that execution of said deficiency judgment be stayed until further order of the Court."
On motion of plaintiff the court in an ex parte hearing November 18, 1933, set aside this order staying execution and November 21st issued an order vacating the same. These motions and orders being without notice were a nullity. (OccidentalLife Ins. Co. v. Niendorf,
December 15, 1933, Anna E. Donaldson assigned the deficiency judgment to J.L. Donaldson, appellant herein.
August 26, 1939, after due notice, respondents Severns and wife and Henry and wife filed with the court a motion to vacate the deficiency judgment, reciting among other things:
"4. That said Decree of Foreclosure fails to determine the person or persons who were personally liable for the debt.
"5. That said Decree fails to name the defendants against whom the Deficiency Judgment should be docketed."
October 31, 1939, the court ordered the deficiency judgment vacated and set aside on the ground that said judgment was "void on the face of the judgment roll on the grounds stated in said motion." This appeal was taken from said order. *640
Present counsel for appellant were not counsel for Mrs. Donaldson at the time of foreclosure.
Section
Under such statutory provision the decree originally or after return of sale must determine who is personally liable for the debt and without such an adjudication there is no legal basis for a deficiency judgment. (Herd v. Tuohy,
Appellant cites Ewing v. Richvale Land Co., supra, and 18 California Jurisprudence, section 729, pages 495, 496, as sustaining the efficacy of this decree as awarding a deficiency judgment. In the first the findings stated: "It is hereby ordered, adjudged, and decreed that a judgment be entered against the defendant Richvale Land Company in the sum of $4,593, with interest at the rate of 10 per cent per annum. . . . ."
The text of the second citation states:
"Under the statute a deficiency judgment may be docketed by the clerk only against the defendant or defendants personally liable for the debt. Since the docketing of the judgment is a proceeding ministerial in character, it follows that the judgment must determine who is personally liable for the debt, and that without such an adjudication, the clerk has no authority to docket a deficiency judgment. It is not necessary that the judgment shall in express terms state that the defendant is personally liable for the debt; it being sufficient, it has been said, if the fact clearly appears from the findings and judgment. A judgment is insufficient in this respect where it contains a mere recital of the fact or finding which is not followed by an adjudication of personal liability. But where the recital is followed by a distinct adjudication and judgment against a designated person in a specified amount, there is a sufficient adjudication of personal liability. The personal liability is determined where it is adjudged that the defendant is liable for any money that may be necessary to make up the deficiency between the amount realized on the sale of the property and the mortgage debt." *642
The decree herein is thus by these authorities fatally defective.
Reliance is urged on the doctrine of Joyce v. Murphy Landetc. Co.,
Nor is the decree aided by the pleadings. Plaintiff Anna E. Donaldson's motion to set aside the stay of execution did not ask that a personal liability be entered against any person and her complaint merely prayed that she "have judgment and execution against the defendants Orin M. Henry and H.E. Severns for any deficiency which may remain."
The conclusion we have reached on this point makes unnecessary a discussion of the other questions presented.
The order sustaining the motion to vacate the deficiency judgment was correct and the judgment is affirmed.
Costs to respondents.
Ailshie, C.J., Budge, Morgan and Holden, JJ., concur.
