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Fay v. Harris

Supreme Court of Arizona

December 31, 1945

FAY
v.
HARRIS

Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.

Affirmed.

Wm. H. Westover and A. J. Eddy, both of Yuma, for appellant.

A. Y. Moore, of Phoenix, for appellee.

Stanford, C. J., and LaPrade and Morgan, JJ., concur.

OPINION

Stanford, C. J.,

Page 861

[64 Ariz. 12] This case raises questions largely pertaining to procedure. The facts are: Plaintiff-appellee secured a judgment against defendant-appellant on January 30, 1935, in the superior court of Maricopa County. Partial recoveries were made under various executions. On December 11, 1939, affidavit for a renewal of judgment was filed by plaintiff, pursuant to the provisions of Article 1, Chapter 22, sections 22-101, and 22-102, ACA 1939. The affidavit referred to the judgment as being docketed in "Book 20 of Judgments at page F". The amount of the original judgment and all payments were properly set out in the affidavit. On the face of the affidavit, it appears that plaintiff, in computing the amount due at the date of the affidavit, failed to deduct a payment of $ 91.95 shown to have been made, and also took credit for $ 112 on account of a "Lien, Com.Cred.Co." shown on one of the execution returns. This was obviously an error in the return. Only the right, title and interest of the judgment debtor is sold under execution. Sec. 24-205, ACA 1939. The purchaser is not entitled to an offset because of a lien on the property purchased. Deducting the sum of these two items, $ 203.95, and properly computing interest on the various items as shown in the affidavit on balances due as of the return dates, the amount unpaid on the judgment should have been approximately $ 1,475.46, rather than the amount shown in the affidavit, $ 1,694.49, and $ 16.53 in excess of the amount which defendant claims to be correct, $ 1,458.93. This difference results from the fact that on the information shown on the affidavit interest is to be computed from dates of return rather than from the dates of the various sales.

In April, 1944, while the judgment as renewed was still effective, plaintiff caused a writ of garnishment to be served on The First National Bank of Arizona. The sheriff's return, after reciting the receipt of the writ, states, "and personally served the same on the 18th day of April, A.D.1944 -- The First National Bank of Arizona, a [64 Ariz. 13] corporation, being the same garnishee named in said Summons, by delivery to R. S. Courts, in person, Assistant Cashier for the First National Bank of Arizona at the County of Maricopa, a true copy of said Writ of Garnishment."

Garnishee answered, acknowledging it was indebted to defendant in the sum of $ 1,040. Defendant thereupon moved to quash the writ of garnishment and set aside the service on the grounds: (1) The affidavit of renewal failed to comply with the requirements of section 22-102, supra, in that the amount shown due was $ 1,694.49, and the exact amount was $ 1,458.93; it fails to show all payments have been credited, and deducts $ 112 actually received, and does not set out the book and page of the judgment docket; the lien of the judgment has expired and the writ of garnishment issued is void; (2) the service is void in that the return shows service only on an assistant cashier, not an official or agent within the provisions of sections 21-313 and 25-206, ACA 1939, relative to service of writs and returns.

Subsequent to the filing, but before the hearing of the foregoing motion, and without first securing an order of the court, an amended return was filed by the sheriff setting out "by delivering to R. S. Courts in person, Assistant Cashier for the First National Bank of Arizona and an Agent of said First National Bank of Arizona, at the principal office of said bank during office hours, in the County of Maricopa, a copy of said Writ of Garnishment * * *".

From a denial of this motion and the judgment against the garnishee, defendant brought this appeal.

We agree with defendant that the provisions of Article 1, Chapter 22, supra, must be followed strictly in order that a judgment may be renewed. The law is well settled as to this. We think, however, that plaintiff did comply with the terms of the statute. Insofar as the affidavit is claimed to be defective in not giving the page of the judgment book, it appears that the clerk of the superior court does not page the judgment book except by alphabetical designation. Thus, a judgment is listed as Book 20 A, Book 20 B, C, and F, as the case may be. Since plaintiff designated the judgment as docketed by the clerk, this is a sufficient and full compliance with the statute.

It is true that plaintiff failed to show the exact balance due, through the errors in computation which we have mentioned. However, all of the items of the ...


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