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CONCRETE v. CHARLIE SPRAYBERRY (05/08/85)

May 8, 1985

CONCRETE, INC., APPELLANT,
v.
CHARLIE SPRAYBERRY, ANDY MACHA AND RAJI CHHABRA, APPELLEES.



Appeal from 142nd District Court of Midland County, Texas. (TC# A-33,906).

COUNSEL

Ruggero S. Provenghi, 600 N. Loraine, Midland, TX 79701, for Appellant.

John E. Gunter, Rassman, Gunter & Boldrick, 1801 West Wall, Midland, TX 79701, for Appellee.

Max N. Osborn, Associate Justice.

Author: Osborn

Concrete, Inc. appeals from an order denying a petition for writ of mandamus and granting relief to Intervenors. We reverse and remand.

Concrete, Inc. obtained a money judgment against G.A. Loney and A & T Development Co., Inc. with a provision for an order of sale. A writ of execution was issued and at a sheriff's sale at 10.00 a.m. on June 5, 1984, Charlie Sprayberry, Andy Macha and Raji Chhabra were each the high bidders on six city lots offered for sale. Each of the three purchasers bid approximately $4,000.00 for the two lots on which he was the high bidder. They tendered payment to the Sheriff. Later in the day, a first lien holder foreclosed on the same property under the terms of a deed of trust.

Concrete, Inc. filed a petition for writ of mandamus when the Sheriff refused to pay to it the sums bid at the sale. The three successful bidders intervened, asking the court to hold the sale void and to order the Sheriff to return to them the sums which they had paid to him following the sale.

At the hearing, the parties stipulated that Concrete, Inc. had a good and valid judgment, that the writ of execution was properly issued pursuant to the judgment, that notice of sale was published on May 16, May 20 and May 27, 1984, and that the sale was conducted at approximately 10:00 a.m. on June 5, 1984. They also stipulated as to the amounts bid and the monies tendered by each bidder for certain described lots. The court denied the petition for writ of mandamus, set aside the sheriff's sale and ordered the monies returned to the three bidders.

By four points of error the Appellant attacks the order of the trial court. The main attack upon the sale in the trial court was that notice was not given as required and therefore the sale was void. Rule 647, Tex.R.Civ.P., provides for notice of the sale of real estate under execution and requires that the notice be published three consecutive weeks preceding the sale. The rule also states:

The first of said publications shall appear not less than twenty days immediately preceding the day of sale.

The first notice was published on May 16, 1984. Counting May 16 as the first day, the twentieth day was June 4 and the sale was not until the following day. Thus, the first notice was twenty days preceding the day of sale, provided the date of the first notice is counted as day one.

The Intervenors contend that any computation of time periods must be done in accordance with Rule 4, Tex.R.Civ.P., which provides:

In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the ...


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