Egon E. MEISTER, Appellant,
Dora ROKOW and Joe J. Paterno, as Commissioner of the Superior Court of Maricopa County, Appellees.
Johnson & Rogers, Phoenix, for appellant.
Burton Lewkowitz and John B. Marron, Phoenix, for appellee Joe J. Paterno, as Court Commissioner.
No appearance for appellee Dora Rakow.
[79 Ariz. 98] UDALL, Justice.
This is an appeal from an order entered in a partition action settling and approving the final report and account of the commissioner therein. The primary question presented is whether the amount allowed said commissioner as compensation for his services was proper.
Plaintiff-appellee, Dora Rakow, on October 16, 1952 filed a complaint in Superior Court against defendant-appellant Egon E. Meister, her former husband. (We will hereinafter refer to the divorced parties as plaintiff and defendant.) Plaintiff prayed for a partition or sale of certain described properties, real and personal, held by the parties as tenants in common under the original divorce decree theretofore entered by the same court between the same parties. Defendant answered making certain admissions and denials and filed a counterclaim for like relief to which plaintiff replied.
On the issues framed by the pleadings a trial was had to the court sitting without a jury, and written judgment entered, wherein, inter alia, it was found:
'2. That a fair partition of the foregoing properties cannot be made without depreciating the value thereof, and that the sale of said property at private sale by a commissioner appointed by this Court would be most beneficial to both of the parties.'
This judgment ordered the appointment of appellee Joe J. Paterno (hereinafter termed the commissioner), a Phoenix realtor, as commissioner and provided:
'* * * that the compensation of said Commissioner shall be 5% of the gross sale price of each particular sale; that said 5% shall also include any brokerage fees paid; that with respect to any sale or sales wherein the Commissioner does not produce the purchaser or purchasers, the compensation of the Commissioner shall be a reasonable amount to be fixed by this Court upon the hearing of the confirmation of said sale or sales; * * *' (Emphasis supplied.)
It further decreed:
'* * * that either the Plaintiff or the Defendant may bid with the Commissioner for the purchase of any of the property held by the Plaintiff and Defendant; * * *.'
The commissioner entered into performance of his duties on January 6, 1953, after executing an oath and providing a surety bond in the sum of $10,000. Thereafter certain of the properties were sold to third parties by the commissioner with later confirmation by the court, and there is no dispute as to the compensation allowed him for these sales. The instant controversy concerns certain described property at 1238 E. McDowell Road, Phoenix, on which the parties had operated a business known as the 'McDowell Laundromat'. The commissioner[79 Ariz. 99] found no third-party buyer, but on May 12, 1953 filed a petition for an order confirming sale of defendant's half-interest in this business to plaintiff for the sum of $22,400. At hearing of this petition, however, the parties in open court bid competitively against each other for the property, and defendant finally prevailed with an offer of $28,000 for plaintiff's interest therein. The court thereupon rejected commissioner's petition for confirmation of a sale to plaintiff and entered a written order that '* * * the undivided one half (1/2) interest of the plaintiff be, and the same is, hereby sold to the defendant, Egon E. Meister for the sum of Twenty-eight Thousand Dollars ($28,000) * * *.'
Thereafter the commissioner filed an account and report in which he claimed the following credit:
'Commissioner's Compensation $2190 Computed on appraised value of laundromat 5% of $43,800. to be paid ...