McFARLAND et ux.
Accordingly the judgment is reversed and the cause remanded to the Superior Court of Cochise county with instructions to enter a judgment in accordance with the pronouncements herein made.
Richey & Herring, of Douglas, for appellants.
David J. Marks, County Attorney, Wesley E. Polley, Chief Deputy County Attorney, of Bisbee, for appellee.
Stanford, Justice. La Prade, C. J., and Udall, Phelps and De Concini, JJ., concur.
[69 Ariz. 134] Action was brought in the trial court by plaintiff (appellee) seeking a declaratory judgment construing Section 24-305, Arizona Code Annotated, 1939, entitled "Amount to be paid upon redemption" and Section 24-505 (id.) authorizing an appraisal of a claimed homestead and the procedure to be followed when the appraised value exceeds $ 4,000.
A declaration of homestead, resulting from an action wherein these defendants (appellants) became the judgment creditors, was recorded by the judgment debtors. Thereafter their homestead sold for $ 4,500 cash and the plaintiff herein, as sheriff of Cochise County, paid to the owners of the homestead (judgment debtors) the sum of $ 4,000. The purchasers at the sale were these identical judgment creditors.
Before the period of redemption had expired, the judgment debtors served notice on plaintiff, as sheriff, of their intention to redeem and tendered him the sum of $ 4,500, plus 8% penalty on $ 500, being $ 40. The plaintiff-sheriff accepted said amount and executed a certificate of redemption to the judgment debtors on that date, which certificate was recorded in the office of the county recorder of Cochise county. Thereafter the plaintiff-sheriff tendered to the attorneys for judgment creditors the sum of $ 4,500, being the purchase price at the sheriff's sale, plus the 8% penalty on $ 500. The attorneys for these judgment creditors refused said sum on the ground that it was insufficient under Section 24-305, supra, the contention of said attorneys being that their clients were entitled to the sum of $ 4,860, being 8% of $ 4,500. Thereafter the said plaintiff-sheriff brought this action to determine whether he had tendered the proper amount provided under Section 24-305, supra, or whether the defendants were entitled [69 Ariz. 135] to the purchase price of $ 4,500, plus 8% penalty.
The action was tried without a jury and judgment was rendered for the plaintiff, to the effect that the purchasers at the sale were not entitled to any penalty on the first $ 4,000 of the purchase price, upon the redemption by these particular redemptioners.
From the judgment, notice of appeal was filed by defendants. Defendants offer the following assignment of error:
"1. The Court erred in entering judgment for the plaintiff, I. V. Pruitt in that said judgment based on the stipulated statement ...