32 Wash. 83 | Wash. | 1903
The opinion of the court was delivered by
On January 18, 1896, tbe appellant recovered a judgment against the respondents in tbe superior court of King county for tbe sum of $4,357.60. Tbe respondents shortly thereafter appealed from tbe judgment to this court, giving a cost bond only, which court, after a bearing on tbe merits of this appeal, affirmed tbe judgment, entering its judgment of affirmance on December 18, 1896. On October 10, 1901, the appellant caused an execution to issue on tbe judgment, which was placed in tbe bands of tbe sheriff, who levied upon and sold thereunder certain real property described as follows: “Lot nine (9) in block nine (9) of Kern Addition to tbe city of Seattle; lots one (1), two (2), and three (3) in block six (6) of Canal Addition to tbe city of Seattle; west one-half (^) of lots two (2) and three (3) of block sixteen (16) of Boren’s Plat of an addition to tbe town (now city) of Seattle, all situate in King county, state of Washington.” Tbe lots were sold in three separate parcels, each of which was bid in by tbe appellant; tbe first for the sum of $150, tbe second for tbe sum of $150, and tbe third for tbe sum of $1,500. Due return of tbe sale was made by tbe sheriff to tbe court on tbe 16th day of November, 1901, whereupon tbe sale was docketed for confirma
1. By a reference to the dates above given it will be noticed that the execution under which the property was sold was issued more than five years after the date of the rendition by the superior court of the judgment on which it was based, but within five years from the date of its affirmance by this court. The respondents contend, and the trial court held, that, because more than five years had elapsed between the date of the rendition of the judgment by the superior court and the date of the issuance of the execution, that the judgment was at that time dormant and incapable of supporting an execution, and that the sale thereunder was void, under the rule of the cases of Brier v. Traders’ National Bank, 24 Wash. 695 (64 Pac. 831); Packwood v. Briggs, 25 Wash. 530 (65 Pac. 846); Hardin v. Day, 29 Wash. 664 (70 Pac. 118), and Hewitt v. Root, 31 Wash. 312 (71 Pac. 1021). These cases do lay down the rule that a judgment becomes dormant and incapable of supporting an execution at the end
“Sec. 5132. The real estate of any judgment debtor and such as he may acquire, shall be held and bound to satisfy any judgment of the district or circuit court of the United States, if rendered in this state, or of the superior or supreme court, or any judgment of a justice of the peace for the period of five years from the day on which said judgment was rendered, and such judgments shall be a lien thereupon to commence as follows: Judgments of the superior court of the county in which real estate of the judgment debtor is situated, from the date of the entry thereof; judgments of the district or circuit courts of the United States, if rendered in this state; judgments of the supreme court; judgments of the superior court of any county other than the county in which said judgment was rendered, and judgments of a justice of the peace, from the time of the filing' and indexing of a duly certified trans-script or abstract of such judgments, as provided by this chapter, with the county clerk of the county in which said real estate is situated.”
“Sec. 5143. An appeal to the supreme court or stay of execution shall not affect any existing lien; and in all cases of an appeal the date of final judgment in the supreme court shall be the time from which said five years shall commence to run. Personal property shall only be held from the time it is actually levied upon.”
The learned counsel for the respondents have submitted
*90 “The statutes of this state limit the lien of a judgment to five years from the date of its rendition, whether the same be a judgment of this court, the superior court, or that of a justice of the peace; providing, however, that, where an appeal is taken to the supreme court on any judgment ‘the date of final judgment in the supreme court shall be the time from which said five years commence to run.’ Bal. Code, § 5132, 5143.”
2. It is next said that the execution is void because of the clause, found in § 5192 of the Code, which prohibits the issuance of an execution on a judgment after the lapse of a period of five years without the issuance of an execution. The whole of the section is as follows:
“The party in whose favor judgment has been given or may hereafter be given or entered in any court of record in this state or the territory of Washington may have an execution issued at any time for the collection or enforcement of the same: Providing, That if a period of five years shall have elapsed without an execution being issued on such judgment, then execution shall not issue thereafter until such judgment shall be revived in the manner provided for by law.”
This section was enacted in its present form by the territorial legislative assembly of 1888 (Session Laws 1888, p. 94), and was doubtless intended to confer on the judgment creditor the power to keep his judgment alive indefinitely by the process of causing execution to issue thereon at intervals of time of less than five years’ duration. In so far, however, as it had this effect, it was superseded by § 5132, sup'a, which was enacted later in time, and which limits the lien of all judgments to a period of five years, whether execution has been issued on them in the mean time or not. How, it will be noticed that the particular language which is thought to render this execution void is found in the proviso, and we think it may fairly be
3. The writ of execution was a general writ directed against the property of the judgment debtors, and the return of the sheriff thereon does not show that he made
“Q. State whether or not you are the owner, or your wife, or both of you, owned any personal property at the time of the issuance of this writ of execution, on or about October 10, 1901. (After objection). A. Yes, sir: We had, of course, some personal property; we had our household goods; we had a piano; I had my instruments I was working with — I suppose, that was personal property. Q. What kind of instruments do you refer to ? A. A transit and other instruments in my use as an engineer. The Court: A general surveyor’s outfit? A. Yes, sir. I had a safe in my office, and office furniture. Q. About what was that all worth at the time this writ was issued ? A. I suppose upwards of a thousand dollars. I, of course, couldn’t replace it for anything like that, but perhaps, sold under the hammer, it would’t bring any more.”
But surely in view 'of the liberal exemption laws of this state there is nothing here which justifies the finding that the respondents had personal property subject to execution of the value of $1,000. Indeed, it would seem that there was no property at all on which the sheriff could have safely levied. The statute exempts to each householder within this state household goods to the value of $500) and such other of his personal property as he may select to the value of $250. The instruments and tools of trade used by the judgment debtor in his business as a surveyor were also exempt to the value of $500. There are other
As to the second objection, it is not the rule that a sale of real property is void merely because the sheriff failed to return that he had been unable to find sufficient personalty to satisfy the writ before levying upon the real estate of the judgment debtor, even when the statute expressly provides, which ours does not, that the sheriff shall first levy upon the debtoi’’s personal property. In a collateral action brought to set aside the sale, it will be presumed that the officer performed his duty in this respect. But statutes of this character are rarely held mandatory; the better rule is that they are directory merely, furnishing a ground upon which a confirmation of a sále might be successfully resisted, were it shown that there was personal property out of which the judgment could have been satisfied, but they do not make a return of the sale of real property, which fails to show that no personal property could be found out of which the judgment could be made, void on its face. On the contrary, such a return is good as against any form of attack other than direct assault. 2 Ereeman, Executions (3d ed.), § 279. In any view of this record, therefore, the sale is not void, because of the silence of the return as to personal property.
4. The court confirmed the sale without requiring notice of the motion therefor to be served on the respond
5. It is next contended that no legal notice of the time and place of sale was given. In view of the line of argument pursued by counsel in discussing this branch of the case as well as others of the objections made, it is well to state that the statute of 1899 (Laws 1899, p. 85 et seq.) has, since its enactment, governed the sale of real property under execution, whether the execution was issued upon a judgment rendered prior or subsequent thereto, and is the statute to which the sale in this case must conform if it is to be upheld. That statute provides, among other things:
“Sec. 3. Before the sale of property under execution, order of sale or decree, notice thereof shall be given as follows: ... 2. In case of real property, by posting a similar notice, particularly describing the property for a period of not less than four (4) weeks prior to the day of sale, in three (3) public places in the county, one of which shall be at the court house door, where the property is to be sold, and one posted on the property to be sold, and publishing a copy thereof once a week, consecutively for the same period, in a newspaper of general circulation published in the county. . .”
“. . . that I received the annexed writ of execution on the 10th day of October, 1901, . . ; that I duly served said writ ... by levying upon all the right, title and interest of the defendants in said writ of execution named, in and to the following real estate, to wit, . . . by filing a copy of said writ, together with a description of said property, with the auditor, and a similar copy with the clerk of said King county, and that under and by virtue of said writ of execution, I advertised the foregoing described property to be sold by me at public auction at the court house door, in said King county, on the 16th day of Kovember, 1901, at 10 o’clock a. m.; that previous to said sale I . . . caused said notice to be posted in three public places in said county, one of which was in a conspicuous place on the property so advertised as aforesaid, one in the United States postoffice, and one at the court house, all in King county, state of Washington, . . . .”
The principal objection on this branch‘of the case is that the sheriff failed to post a sufficient number of notices. The lands sold consisted of three separate tracts somewhat widely separated, and the return shows that but three notices were posted, one only of which was on the land. The contention is that the statute requires a notice of sale to be posted on each tract advertised to be sold, and that this sale is void because of the failure of the return to show that the notices of sale were so posted. But it seems to us that this contention is not supported by the statute. A sheriff having in charge a writ of execution may lawfully levy upon more than one tract of land belonging to the judgment debtor, and may lawfully advertise and sell all, or any number less than 'all, of the several tracts he so levies upon. This is clearly the meaning of the statute. The section prescribing the manner of sale expressly provides that “when the sale is of real property, consisting of
“The authorities very generally hold that statutes requiring notice are directory rather than mandatory, and that mistakes in the notice or even a failure to give notice will not avoid the sale as against a purchaser not himself in fault.” 20 Enc. PL & Pr. 200, and cases cited.
Other objections to the notice are that none of the tracts of land sold was in a public place, and hence a posting on the land would not be a compliance with the statute, and that the return fails to state that a notice was posted at the court house door. ETeither of these objections are of merit. As to the first, it is true that the statute requires the notices to be posted in public places, but it specifically directs that one of them be posted on the property to be sold. This means that the notice posted on the land must be in a conspicuous place, that is, not in an obscure or hidden place, but it does not mean that a public place must be found on
6. It appears that the lots in Boren’s plat were, at the time of the levy and sale, occupied by the respondents as a home, and that they had been so thus occupied ever since the year 1881. The trial court found that these lots constituted the homestead of the respondents, and were exempt from levy and sale under a general execution such
We conclude, therefore, that the respondents acquired a homestead on these particular lots by selection prior to the act of 1895, which they have at .all times since maintained; that, notwithstanding the value of the homestead is now greater than one thousand dollars, the excess cannot be reached by a general execution, but must be reached by a sale in the manner provided by the law in force at the time of its selection, and that the "trial court correctly held the sale of'these lots void.
7. The court found that the respondents had been damaged in the sum of five hundred dollars, and entered judgment in their favor for that sum. There is no justification in the record for this finding and judgment. Aside from the fact that the ordinary costs allowed by statute are all that can be recovered when claimed rights are sought to be enforced by the ordinary and usual processes of the law, there was absolutely no evidence of actual damages. Stating the elements constituting the damage, the respondent witness said: “I certainly am damaged by the continuance of this suit; I can make no disposition of the property, and the worry and discomfort is certainly continuing all the time.” The suit he referred to was the action instituted by himself, which could hardly afford him any ground of complaint, and his general statement that he could make no disposition of the property, unaccompanied by a showing of an actual loss because of that
The judgment appealed from will be reversed, and the cause remanded to the lower court with instructions to enter a judgment vacating and setting aside the execution sale as to the lots in Boren’s plat only, without the assessment of damages of any nature, further than the ordinary costs of the action. In all other respects the sale of the real property will be confirmed. The appellant will recover his costs in this court.
Mount, Andeks, Dunbak and Hadley, JJ., concur.