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Schuster v. Merrill

Supreme Court of Arizona

October 7, 1940

LOUISE A. SCHUSTER, Appellant,
v.
ROY N. MERRILL, as Sheriff of Maricopa County, Arizona, and UNITED STATES FIDELITY & GUARANTY COMPANY, a Corporation, Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment reversed and cause remanded with directions.

Messrs. Clark & Clark, for Appellant.

Messrs. Moore & Romley, for Appellees.

OPINION

[56 Ariz. 115] ROSS, C.J.

In this action Louise A. Schuster seeks to recover a judgment against Roy N. Merrill, as sheriff of Maricopa county, and the United States Fidelity & Guaranty Company, his surety, for the failure and neglect of said sheriff to carry out the commands of a writ of execution placed in his hands for the purpose of levying upon the property of the judgment debtor to satisfy a judgment. The court sustained a general demurrer to the complaint and ordered the complaint dismissed. From the order sustaining demurrer and the judgment of dismissal the plaintiff has appealed.

It is contended by the defendants that the execution was not "regular on its face" and that for that reason the sheriff was excusable for not serving it. The respects in which the execution is claimed to be not regular on its face are two: (1) That the judgment on which it was issued was entered more than five years before the execution and was therefore dormant; (2) that the amount the sheriff was commanded to collect was uncertain and indefinite. Before undertaking to analyze these two points, we copy the execution, which is

Page 193

attached to and made a part of the complaint as "Exhibit A":

[56 Ariz. 116] "Exhibit A.

"In the Superior Court of the State of Arizona In and For the County of Maricopa.

"Thomas Schuster, Plaintiff, vs. Louise A. Schuster, Defendant.

No. 34836 Execution.

"The State of Arizona To the Sheriff of the County of Maricopa, Greeting:

"Whereas, on the 19th day of January, 1932, Louise A. Schuster, defendant above named, recovered a judgment in the said Superior Court of Maricopa County, State of Arizona, against Thomas Schuster, plaintiff herein, for payment of Sixty-five Dollars ($65.00) per month and costs, which judgment was modified on March 1, 1934, by reducing said payments to Thirty-five Dollars ($35.00) per month, ...


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