Brand v. Baker

71 P. 320, 42 Or. 426, 1903 Ore. LEXIS 116

• Court: Oregon Supreme Court
• Decided: January 26, 1903
• Status: Published

Opinion

Mr. Justice Bean,

after stating the facts, delivered the opinion of the court.

The court approaches the examination of the questions involved on this appeal unembarrassed by the consideration that its decision will affect the title to the land sold «under the execution issued on the judgment in favor of the defendants and against the plaintiff. The redemption, on December 31, 1901, by Murdock, for and on behalf of the plaintiff, operated as a termination of the effect of the sale or a payment and satisfaction of the judgment (B. & C. Comp. § 250), so that, whatever conclusion we may reach, it will not result in the title to real property of the value of $30,000 passing to a purchaser at an execution sale for $42. The possibility of such a result, however, under the law, without the knowledge of the owner of the property, would seem to suggest the advisability of legislative action.

1. Property is levied upon under an execution in the same manner and with like effect as similar property is attached: B. & C. Comp. § 233. Prior to 1889, real property was .attached “by leaving with the occupant thereof, or, if there be no occupant, in a conspicuous place thereon, a copy of the writ certified by the sheriff” (Hill’s Ann. Laws, § 149), thus, in effect, actually seizing the property, and providing for notice to the owner, or some one representing him. The legislative assembly of that year, however (Laws 1899, p. 231, § 1), so amended the law that real property is now attached by delivering to the clerk of the county in which it is situated a certificate containing the title of the cause, the names of the parties to the action, a description of such real property, and a statement that the same has been attached at the suit of the plaintiff (B. & C. Comp. § 301), apparently without observing that such amendment would affect the manner of levying thereon under an execution. It would, therefore, seem as if real property may now be levied on under a writ of execution without an actual seizure of the property, or notice to or knowledge of the owner, and, as there is no law requiring notice of a motion for an order confirming the sale thereof, it is possible for the real property of a judgment debtor to be sold, the sale confirmed, and the time for redemption expire, without his knowledge, unless from time to time he searches the public records, or happens upon the advertisement of the sale in some obscure newspaper, where such advertisements are frequently published, or chances to see it in some place where posted by the sheriff. But these are matters for legislative, and not judicial, action, and so we pass to a consideration of the question in hand.

2. Nothing' is claimed by the plaintiff for the order of the court made on its own motion January 24, 1902, attempting- to vacate and set aside the sale. This order was made after the expiration of the term of court at which the sale was confirmed, and consequently is void. A court has the inherent power to vacate its judgments or orders at any time during the term, but after that time it can only do so in pursuance of the provisions of the statute: B. & C. Comp. § 103; Deering v. Quivey, 26 Or. 556 (38 Pac. 710).

3. The motion of the plaintiff, filed on February 7, 1902, to vacate the order of confirmation, and for leave to file objections to the same, is based upon the section referred to (section 103), which declares that the court may, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. The motion was not made within one year after the order. The plaintiff contends, however, that it was within time, because made within one year after actual notice of such order to his authorized agents, Mac-master & Birrell. We have no doubt that the application for the relief of a party against whom an order, judgment, or decree is taken through his mistake, surprise, or excusable neglect may be made within a year after notice thereof: Wieland v. Shillock, 23 Minn. 227; Knox v. Clifford, 41 Wis. 458; Schobacher v. Germantown F. M. Ins. Co. 59 Wis. 86 (17 N. W. 969); Turner v. Leathem, 84 Wis. 633 (54 N. W. 1001). We are likewise of the opinion that the statute provides a means whereby a judgment debtor may be relieved upon a proper showing from an order confirming a sale of his property under an execution, where such order is taken against him through his mistake, surprise, or excusable neglect; but we do not think the plaintiff has brought himself within the provisions of the section, because the application was not made within the time provided, and because the order was not taken against him through excusable neglect. It appears from the motion and papers in support thereof that Murdock, who was retained by plaintiff in the matter of the settlement or payment of the judgment, had notice of the sale, the confirmation thereof, and of all proceedings had therein, and, instead of filing objections to the confirmation of the sale, or moving within time for relief from the order of confirmation, preferred to redeem the property. If he was in fact the attorney for Brand, and authorized to represent him in the matter, the latter is bound by his knowledge, and is himself chargeable with notice of the proceedings, and therefore the application to be relieved therefrom was not within time. Notice to an attorney is notice to his client, within the meaning of the statute, and ordinarily no relief will be granted to a party on account of the mistake or neglect of his attorney, unless it is such as would be excusable if attributable to himself: 15 Enc. Pl. & Pr. 247; 1 Freeman. Judgm. (4 ed.) § 112; Sargent v. Kindred, 5 N. D. 472 (67 N. W. 826; Schobacher v. Germantown F. M. Ins. Co. 59 Wis. 86 (17 N. W. 969); Jex v. Jacob, 7 Abb. N. C. 452.

If, however, Murdock was not Brand’s attorney, but was acting wholly without authority, as now seems to be contended, then his agents in Portland were inexcusably negligent in not ascertaining what steps, if any, had been taken to enforce the judgment, and therefore the order of confirmation was not taken against the plaintiff through his excusable neglect. They knew that the judgment had been rendered, and was not paid, and they were chargeable with knowledge that, under the law, an execution could be issued thereon, the property of the judgment debtor seized and sold, and such sale confirmed, without notice to them or their principal, unless objections thereto were filed within a certain time. The law does not require notice to a judgment debtor of a proposed effort to collect the judgment against him, nor of the levy and sale of his property under an execution issued thereon, except by the filing of the sheriff’s certificate in the county clerk’s office, and the publication and posting of notices of sale. While it would no doubt have been an act of courtesy on the part of the sheriff or the defendants’ attorney to notify Maemaster & Birrell, the plaintiff’s agents and sureties on the attachment bond, of the issuing of execution and the purpose to levy upon the property, they were under no legal obligation to do so. It was the duty of the court, if the proceedings were regular, to confirm the sale on January 24, 1902, as there had been no objections filed thereto, and the time for filing the same had long since expired; so that this oi’der cannot be said to have been taken against the plaintiff through his excusable neglect, simply because he had no personal knowledge thereof. Mr. Justice Corliss, in speaking of the duty of a judgment debtor who sought to set aside a sale on the ground of inadequacy of price, and that he had no knowledge thereof until after the time for redemption had expired, said: “Under ordinary circumstances he should not be heard to plead that he was ignorant of the fact of sale. Knowing that there is a judgment lien against his land, and that the creditor is under no legal obligation to notify him of a single step connected with the sale of his land under the judgment, he must be on the alert to ascertain whether his land has been or is about, to be sold. Certainly, it is not a harsh rule which exacts of him such diligence, such measure of business prudence, in looking after his own interests, as is involved in the not difficult task of discovering within a year of the day of sale that his property has been sold under the judgment, which he knows.is a lien against it. He can always absolutely protect himself by paying the judgment; and, if he does not pay it, he at least knows that a sale may at any time take place, without his being personally notified of such fact. It is customary for the sheriff to malee report of the sale, and the law contemplates that an order confirming such sale may be entered. These papers are ordinarily made matters of record about the time of the sale, and it is an almost invariable custom to record the certificate of sale issued at the time the sale is made. For these reasons we do not think that the owner may couple with mere inadequacy of price his own inattention to his personal affairs, resulting in the loss of the right to redeem, and on this basis build up an exception to the rule that inadequacy of price affords no ground for relief, because the debtor might have redeemed. He cannot lose this right of redemption through his own want of diligence, and then urge its loss as a reason for taking his case out of the rule: Warren v. Stinson, 6 N. D. 293, 299 (70 N. W. 279).

So, in this case, the plaintiff and his agents, through their inattention or want of diligence, could not let the time go by without any effort to learn of the sale of the property under the execution, or the confirmation thereof, and then urge their want of notice as a reason for applying a year and a half after the sale for relief therefrom, or from the order of confirmation. It does not appear that they made an examination of the record, or inquiry of any officer or person who would likely possess knowledge on the subject, but they seem to have relied entirely upon Murdock, and therefore it is no legal excuse that they did not know of such proceedings. If objections had been filed to the confirmation of the sale, or if the plaintiff had known of the sale, and intended to file such objections, but was prevented from doing so by accident, surprise, or excusable neglect, or perhaps, even, if he had been so prevented from learning of the sale or of the confirmation thereof, there would be some ground for the argument that he should be entitled to relief under the statute, if his application was made within time. The statute, however, confines the relief to a party against whom a judgment, order, or other proceeding has been taken through his mistake, inadvertence, surprise, or excusable , neglect, and a judgment or order is not so taken simply because ' the party did not know of it, unless the law requires him to be notified, when the means of knowledge were accessible, and he simply failed or neglected to avail himself thereof.

4. There is another reason why the order vacating the sale would seem to be erroneous, even if the court had jurisdiction to make it. The redemption, in December,.1901, by Murdock, acting as the agent and representative of the plaintiff, terminated the effect of the sale and restored the plaintiff to his estate: Cartwright v. Savage, 5 Or. 397; Settlemire v. Newsome, 10 Or. 446; Flanders v. Aumack, 32 Or. 19 (51 Pac. 447, 67 Am. St. Rep. 504.) It is true the plaintiff says that the redemption by Murdock was made without express authority from his authorized agents; but it was made with his money, under general authority to pay and satisfy the judgment, the certificate of redemption was issued to him, and there is no showing that he ever repudiated it. We are therefore forced to conclude upon this record that the order of the court below-vacating the confirmation of sale was erroneous, and that such order must be reversed and the application dismissed.

Reversed.