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Lincoln-Mercury-Phoenix, Inc. v. Base

Supreme Court of Arizona

March 19, 1958

LINCOLN-MERCURY-PHOENIX, Inc., a corporation, and Sunland Realty & Investment Company, a corporation, Appellants,
Mrs. G. (Grace) BASE, Appellee.

Page 892

[84 Ariz. 10] Primock & Rogers, Phoenix, for appellants.

Rawlins, Davis, Christy, Kleinman & Burrus, by Chester J. Peterson, Phoenix, for appellee.

UDALL, Chief Justice.

[84 Ariz. 11] This is a joint appeal (1) by Lincoln-Mercury-Phoenix, Inc. from a judgment setting aside a sheriff's sale of real property and declaring a certificate of sale and sheriff's deed issued thereon to be null and void; and (2) an appeal by Sunland Realty & Investment Co., Inc., from an order denying it the right to intervene in said matter. The latter is hereinafter referred to as Sunland. Both appellants are represented by the same attorneys.

A narrative statement of the basic facts giving rise to the instant appeal as they appear from the record is as follows: a complaint for the collection of a debt due on an open account was filed by appellant Lincoln-Mercury-Phoenix, Inc. (hereinafter called plaintiff), against appellee Mrs. G. Base (hereinafter called defendant), on the 30th day of September, 1954, being cause No. 81078. A private process server was appointed under Rule 4(c) of the Rules of Civil Procedure, 16 A.R.S., and return of service was filed wherein it is stated, inter alia, that he had personally served defendant

'on October 4, 1954, at 6:07 p. m., at her usual place of abode, * * * by service upon a female person over the age of twentyone years, who stated her name to be ALLEN, and who also stated she resided with MRS. BASE. That said female ALLEN was of suitable age and discretion to accept such service.'

No appearance having been made by defendant, on October 25, 1954, an affidavit of default was filed and on the same day a clerk's default was entered. On the 16th day of November, 1954 a judgment against defendant, in the sum of $352.42, with interest and costs, was entered in favor of plaintiff. Immediately thereafter two writs of garnishment were issued; one was quashed and the other garnishee filed an answer that it was not indebted to defendant.

Page 893

On March 12, 1955, a general writ of execution was issued and on March 24th said writ was returned wholly unsatisfied as the sheriff was unable to locate anything of value belonging to defendant.

On January 6, 1956, attorneys Primock and Rogers were substituted for the firm of Jennings, Strouss, Salmon & Trask, as attorneys for plaintiff, and on the same day another general writ of execution was issued and a sheriff's levy made upon all the right, title and interest of defendant in 'Camelback Park Estates, Lot 87.' Sheriff's notice of sale of real property was given, and on February 9, 1956, the property in question was sold at public auction by the sheriff to plaintiff for the total amount due on the judgment, viz., $415.68, and a sheriff's certificate of sale was issued therefor. On February 23, 1956, plaintiff executed a quitclaim deed to Stayden, Schwartz and Goldfield for said property, the recited consideration being $10.00.

[84 Ariz. 12] On September 27, 1956, defendant Mrs. G. Base filed a motion in the same cause (No. 81078) to set aside sheriff's sale and for a restraining order. In support thereof she filed an affidavit stating, inter alia, the following:

'That she is the defendant in the above-entitled and numbered matter. That on October 4, 1954, she was not within the boundaries of the State of Arizona, and had at that time leased a portion of her home on Lot 87, Camelback Estates to one, Fay Allen. That the said Fay Allen was not her agent and was not residing with her, but was residing in separate quarters in the said home located on Lot 87, Camelback Park Estates, and that the said Fay Allen did not forward to her nor mention to her the fact that she had had given to her the summons and complaint in the above-entitled matter. That as a result this affiant did not know an action had been filed against her and therefore, did not have opportunity to appear and defend herself in this matter.'

The affidavit then stated the facts subsequently included in the court's findings, infra, concerning her personal property and the equity she owned in the real property so sold. No counter affidavit was filed by plaintiff, hence all of the statements in the affidavit stand uncontroverted except insofar as they are refuted by the process server's return, supra.

After several hearings were had and briefs filed on said motion to set aside, the court on January 29, 1957, made the following findings which are incorporated in the minutes, viz.,

'It appearing by the uncontroverted affidavit of the defendant, Mrs. G. Base, and the Court therefore finds, that the Defendant was never properly served with summons and complaint in the above-entitled matter; that the defendant owned personal property within the State of Arizona subject to execution, and the lvey upon and sale of real property, before Defendant's personal property was exhausted, was improper and without authority; and that the sale price of $415.68 for the real property, which was worth Ten Thousand Dollars, and in which the Defendant owned an equity of Five Thousand Dollars, was grossly inadequate.'

It was ordered that the sheriff's sale of said real property, the certificate issued thereon and the sheriff's deed thereto, be cancelled, set aside, and declared void. It was further ordered that the clerk pay to plaintiff the sum of $415.68, which defendant had therefore deposited with ...

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