Bank of Pleasant Grove v. Johnson

552 P.2d 1276, 1976 Utah LEXIS 897

• Court: Utah Supreme Court
• Decided: July 22, 1976
• Docket: No. 14404
• Status: Published

Opinions

ELLETT, Justice:

The plaintiff commenced this action against the defendants to recover on a delinquent promissory note which was secured by a security interest in personal property. The property was attached before judgment and was sold at a foreclosure sale after judgment was obtained. A deficiency judgment was then entered against defendants.

The defendants appealed, claiming there were technical defects in the proceedings whereby the writ of attachment was obtained. They also assign as error the dismissal of their counterclaim for damages because of the wrongful attachment. The claimed defects in the affidavit for the writ were:

(a) It did not show that plaintiff had a special interest in the personal property;

(b) It did not allege the cause of detention of the property;

(c) It stated the value of the property to be $8,000 (which was the amount due and owing on the note).

There is no merit to the claims. The affidavit stated that plaintiff was entitled to the possession of the property; that the defendants wrongfully detained possession thereof and that the value of the property was $8,000. The property was sold by the sheriff pursuant to order of the court and brought only $4,800. As to the defects claimed in (a) and (b) above, the affidavit, together with the allegations of the complaint in which the note and security agreements were attached and made a part by reference, set forth in substance all the facts required by Rule 64B(b), U.R.C.P.

Even if we assume a technical deficiency in the affidavit, the ruling of the trial court was correct and the defendants were not harmed thereby. In the first place, the plaintiff had a security interest in the property, and under Section 70A-9-503, U.C.A.1953 (Replacement Vol. 7B), it was entitled to the possession thereof and could have obtained it if it could do so without a breach of the peace. In the second place, if there had been no possession of the secured property before judgment, the result would have been the same, to-wit: It would have been sold pursuant to the order of the court. In the third place, the trial court gave the correct judgment pursuant to the mandate of our Rule 61, U.R.C.P., viz., that he “must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”

An appellate court is bound by the same rule regarding harmless error. The law is correctly stated in 5 Am.Jur.2d Sec. 776 (Appeal and Error), as follows:

To warrant reversal, two elements must be shown: error, and injury to the party appealing. Error is harmless when it is trivial, formal, or merely academic, and not prejudicial to the substantial rights of the party assigning it, and where it in no way affects the final outcome of the case; it is prejudicial, and ground for reversal, only when it affects the final result of the case and works adversely to a substantial right of the party assigning it.

There was no reversible error in this case and the judgment is affirmed. Costs are awarded to the respondent.

HENRIOD, C. J., and CROCKETT and TUCKETT, JJ., concur.