Summary
In Lunsford, however, the defendants had not yet made a general appearance in the action at the time that the confirmation motion was filed.
Summary of this case from Law Offices of Murphy L. Clark v. AltmanOpinion
No. 1915.
November 23, 1973.
Appeal from the Anchorage Superior Court, Third Judicial District, Edmond W. Burke, J.
Barry Donnellan, Edgar Paul Boyko Associates, Anchorage, for appellants.
Peter B. Walton and Donna C. Willard, Walton Willard, Anchorage, for appellee.
Before RABINOWITZ, Chief Justice and CONNOR, ERWIN and BOOCHEVER, Justices.
OPINION
Kaiser Gypsum obtained a judgment of $18,601.32 against Charles and Joan Lunsford on March 29, 1972, and on May 24, 1972, levied upon four parcels of real property owned by them on the date of judgment. Notices of public sale were posted on June 1, 1972 at the District Court bulletin board and two United States Post Offices by Francis X. Wirth who had been employed by the plaintiff to carry out the execution and sale. Additional notices were published in the Anchorage Daily News over a period of four weeks. There is no dispute that these procedures were adequate. The controversy concerns the events surrounding the sale itself.
On June 29, 1972, the day of the public sale, Peter Walton, attorney for the judgment creditor, Kaiser Gypsum, contacted Wirth and requested the sale be delayed one day, until June 30. Wirth's affidavit recited that he went to the courthouse where the sale was to be held, publicly gave notice that it would be postponed one day, and placed written notices of the postponement at the three locations where the sale had been initially advertised. Returns of service were filed. The affidavit also stated that Mr. Wirth remained in the vicinity of the scheduled place of sale for approximately fifteen minutes and that he did not see Charles Lunsford, with whom Wirth was familiar. Lunsford swore in an affidavit that he had been present at the courthouse at the scheduled time of 10:00 a.m. and that no public proclamation of postponement had been made.
On June 30, the sale took place in accordance with the re-notices posted by Wirth. Mr. Walton, the only bidder present, offered a total of $16,001.00 for the property on behalf of Kaiser Gypsum. A motion for an order confirming the sale was filed the same day by Walton, and the order was issued July 25, 1972 by Presiding Judge James Fitzgerald.
A motion to set aside the sale was submitted by the Lunsfords on November 28, 1972 alleging that the sale proceedings had not complied with AS 09.35.160. Argument was heard by Superior Court Judge Edmond Burke who denied the motion in an order dated January 9, 1973. Notice of Appeal from this ruling was filed two weeks thereafter. Appellee promptly offered to have a complete evidentiary hearing, but this offer was rejected by appellants.
The Lunsfords raise a single point: the conduct of the execution sale did not comply with the requirements of AS 09.35.160. Kaiser Gypsum, besides responding to this contention, argues that confirmation of the sale cured any irregularity in the sale proceeding. We agree.
The effect of a valid confirmation order is to insulate the sale procedure from subsequent challenge based upon a mere irregularity in the conduct of the sale. Kaiser Gypsum entered a motion for confirmation on June 30, the day of the postponed sale. The order was issued July 25, 1972.
Confirmation is authorized by AS 09.35.180 which provides in part:
(a) Where real property executed upon has been sold, the judgment creditor may, upon motion, apply for an order confirming the sale. The judgment debtor may object to the confirmation of the sale on the grounds that there were substantial irregularities in the proceedings of sale which caused probable loss or injury to the judgment debtor.
. . . . .
(d) An order confirming a sale is a conclusive determination of the regularity of the proceedings concerning the sale, as to all persons, in any other action or proceeding.
Lesamis v. Greenberg, 225 F. 449, 453 (9th Cir. 1915); Cowden v. Wild Goose Mining Trading Co., 199 F. 561, 566 (9th Cir. 1912).
In Heid v. Ebner, 133 F. 156, 158 (9th Cir. 1904), the general rule is set out in the following language:
It is the general rule in the United States that the confirmation of a judicial sale by a court of competent jurisdiction cures all irregularities in the proceedings leading up to or in the conduct of the sale, and that while such a sale will be set aside where fraud, mistake, or surprise is shown, mere irregularities in the preliminary proceedings do not render the sale invalid, and will not suffice to set it aside after confirmation. . . .
The record does not show that the Lunsfords were served with the motion for confirmation, but because the Lunsfords had defaulted on the underlying claim, no service is required under Civil Rule 5(a). The order of confirmation issued on July 25, 1972 is thus a conclusive determination of the regularity of the sale in this case.
Alaska R.Civ.P. 5 provides in part:
(a) Service — When Required. Every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, and similar paper shall be served upon each of the parties but no service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.
The decision of the trial court is affirmed.
FITZGERALD, J., not participating.