Butterfield v. Tietz

FINLEY, J. pro tem.

*

Appellant Belho Corporation was not originally a party to this action. It did not become involved as a party until after judgment in the amount of $12,161.55 was entered in favor of plaintiff-respondent Butter-field and against defendants-respondents as judgment debtors. A writ of execution was issued and certain real property

originally

belonging to defendants-respondents, but then standing in the name of appellant, was sold to Butterfield at execution sale. Shortly thereafter Butterfield successfully presented a motion to set the sale aside. Appellant prosecutes this appeal as record title holder of the property thus sold, claiming to be aggrieved and that as an aggrieved party, although not a party to the original action, he has a right of appeal.

At the sale, when the bidding was opened, Butterfield, speaking through his attorney, offered $1,000. There being no other bids, the property was sold to him for $1,000. The selling officer together with Butterfield and his attorney, then went to the marshal’s office to execute the necessary papers. At this point the selling officer sought to clarify what the $1,000 was intended to cover by asking Butterfield if his bid included costs. Butterfield contended his offer was meant to be $1,000 over and above the amount of his judgment. Because of this alleged misunderstanding, which amounts to an irregularity in the sale since there was no meeting of the minds between the bidder and selling officer, Butterfield moved with success to have the sale set aside.

The appeal presents two basic issues: 1. Does a successor to a fee title have standing to appeal from an order setting aside an execution of sale affecting title, even though not a party of record to the original action resulting in the judgment ?

2. Did the trial court abuse its discretion in ordering the execution sale vacated ?

First

Issue:

The answer to the first question begins with an analysis of Code of Civil Procedure, section 938, which states in part: “Any party aggrieved may appeal . . .” Ordinarily, if an appellant is not a party of record at the time of judgment

[485]