*1
PROTO,
CONSTANTINE
Appellant,
Plaintiff
political
COUNTY,
MISSOULA
State
subdivision
Respondent.
Montana,
Defendant
No. 87-457.
Submitted on Briefs Jan.
Feb.
Decided
Rehearing Denied March
Terry Missoula, G. appellant. III, Newman, Atty., Deschamps, Atty., Robert Co. Co. Joan Missoula, for respondent. defendant and Opinion the Court.
MR. JUSTICE HARRISON delivered appeal of the Fourth Judicial This is an from the District Court District, appeal State Montana. M.R.Civ.P., motion to dismiss the under *2 upon Fol- granted. which relief could be for failure state claim the lowing briefing argument, granted and oral the ap- complaint Appellant prejudice. motion the with now peals. We affirm. January 21, 1987, by pursuant
On of execution issued the to writ Court, County the Sheriff con- Missoula Justice Missoula appel- judgment against the ducted a Sheriff’s sale as lant, (Proto). properly Sheriff levied on Constantine Proto The property, consisting one red fox coat. Proto’s of one mink coat and required pursuant posted legally The of sale the notice statute, no According to indication sale, Deputy required. form Sheriff an- At the only accepted from successful bid- nounced that cash would be personal der and that checks would not be 21, accepted sale, in January At bids were received for the red fox coat. $600 the amount of for the mink coat and $550 by attempted successful bidders sale. The coats checks were refused fox selling were and the red sell- $200 then resold with the mink ing in was tendered $500. time that cash alleges damaged by
Proto that he was only accepted to leave were not allowed would be because bidders Therefore, for an amount which and obtain cash. coats were sold considerably was less true than their value. complaint herein raises Does the one issue our review: granted?
state relief for which differently: Did Respondent, the issue states be- prejudice correctly District Court dismiss in the there no the Sheriff’s cause was breach and thus personal property for cash conduct of for the made? basis claims sufficiency aof com- argues test for the the standard States plaint against the United a motion to dismiss set Conley v. 45, 46, Gibson Supreme 355 U.S. Court 99, 102, 2 S.Ct. L.Ed.2d 84: course, follow, of sufficiency complaint we appraising
“In not be dismissed for fail- rule that a should beyond appears ure to state claim unless it doubt that prove support no set of facts in of his claim which would entitle him to relief.” repeatedly
This Court has test. Busch endorsed same 130, 132, Kammerer 649 P.2d 1340. Proto Mont. County’s pursuant dismiss motion to admitting pleaded allegations has the effect of all well complaint. Proto, count, Sheriff, alleged acting his first described, required failed to sell the coats bidder as 25-13-704(1), toMCA Proto’s detriment. Count two $6,500 notes that the combined market value of the coats was particularly the restriction on the of payment, mode in that it only sale, was announced “chilling time had a effect” bidding resulting grossly in the sale of the for a price. presents deficient second count an alternative measuring damages, Proto’s issue not before this Court. justified meat of the issue whether or not the Sheriff *3 refusing accept payment check. 25-13-704(1)
Sections primary and MCA are the code sections provides: involved herein. Section “(1) property All sales of under execution must be made at auction p.m. between the hours of a.m. and After property execution, sufficient satisfy has been sold no more can be sold. Neither the holding officer execution nor purchaser any purchase become a or be interested in at such
“(2) personal property capable When the sale is of of manual deliv- ery, it be must within view who be sold of those attend the sedeeind parcels likely such bring highest price; when the are sale property parcels, is real consisting of several known lots or they prop- must separately, portion be sold or when a real of such erty sepa- person is claimed a third it sold to be rately, portion debtor, pre- if judgment must be thus sold. The sale, may property, sent at also direct in which or the order personal, property shall be sold when such known consists several parcels sepa- lots advantage or or articles which can be sold to rately, and the sheriff must follow such directions.” that the sale violated 25-13-704, MCA, in he failed to sell of Section the coats to the bidder. provides: it
This ties with Section capable manual purchaser any personal property “When the money, purchase making the sale must delivery pays desired, and, purchaser execute and property deliver conveys to certificate deliver to him a certificate of the sale. Such in such purchaser right all the which the debtor had added.) (Emphasis day was levied.” the execution or attachment problem is meant agree that revolves around what We “purchase officer must money.” contends it means the words position Sheriff or his take checks and the takes the position the section It is Proto’s cannot take checks. item(s) by any purchaser must means customary means, taking delivery. Proto admits before currency, that his dic- meaning “money” tender but includes customary tionary “money” checks and other to include defines means it, authorizing the sheriff
Absent
anything
other
86 A.L.R.2d
credit
than
to which the
judicial
prescribed
our statute
terms
recognized a
courts have
decree of sale must conform. While some
to a bid
exception
judgment
creditor consents
limited
which the
is bound
paid by
general
is
rule
bid,
requires. For the ex
accept only
as our statute
see,
P.
Com
Metz Hicklin
ception
We believe intent of the reading from the ment at clear money.” by “purchase be of our statute which states must 235, 1 P.2d Sherlock v. Vinson 90 Mont. Proto cites position money and what can supporting his on what issue proposition was not at this an execution sale. on both Sherlock. present case distinguishable from the case accepted a law. In the sheriff the facts *4 day. The sheriff buyer payment stopped payment the next result and buyer. to us that repudiating then It seems sued County’s posi- persuasive in more principles tion, position. than to Proto’s a statu- argument that since there
We find no merit to Proto’s bidder, the Sheriff highest duty public to the tory to sell at a auction duty accept any payment medium of that is tendered. The has duty to sell to bidder in no restricts the Sheriffs authority accepted. to announce medium of will be what Section addition, requires public
In which auc- procedural prescribing tion prohibiting hours of sale and really
becoming purchaser. The statute concerns itself with the method of the auction sale and not the terms of the sale.
Additionally, duty an property. obtain fair If he market value so, “chilling” bidding. does not do creates a affect on We find Also, argument. basis for an conceded his brief that there was not a the Sheriff obtain full market value at the execution sale. concession alone the dis missal of entirety in its because the sole of relief goods. the amount on a fair based market value of validity suggestion We find no to Proto’s the Uniform duty by Commercial Code creates a the execution officer to any authority medium of tendered. do we Nor find applicable Uniform Commercial Code is to execution sales. procedural authority execution officers is set addressing judgment. our statutes execution The order
affirmed.
MR. CHIEF JUSTICE TURNAGE MR. WEBER JUSTICES and McDONOUGH concur.
MR. SHEEHY, dissenting: JUSTICE contemplates may actual necessarily at the The section obvi- collected moment ously empowers until he hold the receives the cash. Thus the officer take a and hold the could days until the check In of checks cleared the bank. these government, and balances in business as checks have become medium of here have been higher bid checks were I dissent.