Fay v. Harris

This case raises questions largely pertaining to procedure. The facts are: Plaintiff-appellee secured a judgment against defendant-appellant on January 30, 1935, in the superior court of Maricopa County. Partial recoveries were made under various executions. On December 11, 1939, affidavit for a renewal of judgment was filed by plaintiff, pursuant to the provisions of Article 1, Chapter 22, sections 22-101, and 22-102, ACA 1939. The affidavit referred to the judgment as being docketed in "Book 20 of Judgments at page F". The amount of the original judgment and all payments were properly set out in the affidavit. On the face of the affidavit, it appears that plaintiff, in computing the amount due at the date of the affidavit, failed to deduct a payment of $91.95 shown to have been made, and also took credit for $112 on account of a "Lien, Com.Cred.Co." shown on one of the execution returns. This was obviously an error in the return. Only the right, title and interest of the judgment debtor is sold under execution. Sec. 24-205, ACA 1939. The purchaser is not entitled to an offset because of a lien on the property purchased. Deducting the sum of these two items, $203.95, and properly computing interest on the various items as shown in the affidavit on balances due as of the return dates, the amount unpaid on the judgment should have been approximately $1,475.46, rather than the amount shown in the affidavit, $1,694.49, and $16.53 in excess of the amount which defendant claims to be correct, $1,458.93. This difference results from the fact that on the information shown on the affidavit interest is to be computed from dates of return rather than from the dates of the various sales.