Blue v. Superior Court, Los Angeles County
| Citation | 305 P.2d 209,147 Cal.App.2d 278 |
| Court | California Court of Appeals |
| Decision Date | 28 December 1956 |
| Parties | R. BLUE, Petitioner, v. The SUPERIOR COURT of the State of California, in and for the COUNTY OF LOS ANGELES, Respondent. Mavis C. Pepe and Raymond V. Pepe, Real Parties in Interest. Civ. 21995. |
Simon Taub and William M. Sternfeld, Beverly Hills, for petitioner.
Harold W. Kennedy, County Counsel; Wm. E. Lamoreaux, Asst. County Counsel; Thomas H. Carver, Deputy County Counsel, Los Angeles, for respondent.
K. E. Nungesser, Los Angeles, for real party in interest Mavis C. Pepe.
Petitioner seeks a writ of mandate to compel the respondent court to vacate and set aside a 'purported judgment' rendered and entered by that court, and to grant petitioner's motion to appoint appraisers pursuant to section 1245 et seq. of the Civil Code to appraise the value of certain property upon which petitioner had caused an execution to be levied and upon which Mavis Pepe (hereinafter called Mavis), real party in interest here, had filed a declaration of homestead.
The facts, insofar as they are relevant to the questions presented here, are:
On February 24, 1955, petitioner commenced an action against Raymond V. Pepe (hereinafter called Pepe), the husband of Mavis, to recover upon certain promissory notes alleged to have been executed by him. Mavis was not a party to the action. This proceeding will hereafter be called 'the action.'
On January 13, 1956, petitioner recovered judgment against Pepe. On March 15 of that year he caused an execution to be levied upon the subject real property, and on April 5 he filed his petition for the appointment of persons to appraise the value of said property. In this petition he alleged all of the facts required by section 1246 of the Civil Code, including the fact that on the 21st of February, 1955, Mavis had executed and caused to be recorded a declaration of homestead upon the subject real property. He further alleged that on the 28th of February, 1955, Pepe was the legal and record owner of the property that on the 28th of February Pepe executed and caused to be recorded a conveyance purporting to terminate his interest in said property and convey the same to Mavis as her sole and separate property; that said conveyance was fraudulent as a transfer in fraud of creditors in that it rendered Pepe insolvent and was made without a fair consideration; that Pepe intended and knew that he incurred debts beyond his ability to pay the same as they matured, and that the conveyance was made with actual intent to hinder, delay, and defraud his creditors; and further alleged that pursuant to section 3439.09, subdivision (2), of the Civil Code he elected to disregard said conveyance and levy upon the subject property.
Petitioner did not cause this petition to be served upon Mavis, and upon the petition coming on to be heard the trial court continued the matter and ordered that the petition be served upon Mavis that she should have the right to answer or otherwise plead to the petition within the time limited in the order.
Thereafter Mavis filed her answer in which all the allegations of the petition made in conformity with section 1246, except the allegation as to the filing by her of the declaration of homestead, were denied. She admitted the conveyance of the subject property to her by Pepe, but denied that said transfer was fraudulent or made without fair consideration or with the intent to defraud creditors. As an affirmative defense she alleged that she was not a party to the action or a judgment debtor of petitioner; that prior to February 25, 1955, she and Pepe held title to the property in question as joint tenants with the right of survivorship, but that on said date Pepe conveyed all of his interest in said property to her, and since that time she had held it as her separate property and as her homestead, and that the homestead has never been abandoned.
Upon the answer being filed the court set the matter down for trial, and after receiving evidence made and filed written findings of fact and conclusions of law. The court found that petitioner had obtained a judgment against Pepe, and that pursuant thereto and within 60 days prior to the filing of the petition for the appointment of appraisers petitioner had caused a writ of execution to be levied upon the subject real property and that said judgment was not one of the classes of judgments enumerated in section 1241 of the Civil Code; that Mavis had filed a declaration of homestead upon the subject property; that said homestead had not been abandoned; that the allegations of the petition as to the value of said real property were true; and that no previous execution arising out of the same judgment had been levied upon said homestead. The court further found that Pepe had conveyed said real property to Mavis as set forth in the petition, and found that said conveyance was for a full, complete, and adequate consideration and was not fraudulent. The court further found that the judgment obtained by petitioner against Pepe and upon which the execution levied had issued was a default judgment and was of no effect but had been rendered upon a purported note not signed nor delivered by Pepe, and further found that Pepe had no right, title, or interest in or to the subject property.
From the foregoing facts the court concluded as a matter of law that Mavis was the owner of the real property and that petitioner had no legal or equitable right, title, or interest therein; that the execution levied upon the subject property should be quashed; and that petitioner was not entitled to any of the remedies provided for by division 2, part 4, title 5, chapter 1, of the Civil Code. Judgment was made and entered in accordance with the court's conclusions of law. 1
It is petitioner's contention that the court, in purporting to determine the question as to whether title had vested in Mavis and whether Pepe had any right, title, or interest to the property which was subject to sale at execution, acted in excess of its jurisdiction; that the judgment rendered was therefore void; and further that his petition for the appointment of appraisers having alleged all of the facts required by section 1246 of the Civil Code, and the court having found all of those facts to be true, there was no room for exercise of any discretion by the court but it was obligated to grant the prayer of said petitioners and appoint the appraisers. It is his further contention that the court was without power to quash the execution upon the application of Mavis, she not being a party to the action in which the execution had issued.
Division 2, part 4, title 5, chapter 1, of the Civil Code makes no provision for the trying of the question as to whether the judgment debtor is the owner of or has any interest in the real property which his judgment creditor seeks to have appraised and sold under execution pursuant to the provisions of that section, nor does it make any provision for the filing by the homestead claimant of an answer or other pleading responsive to a petition filed pursuant to sections 1246-48 of the Civil Code. It has long been established that an answer or other responsive pleading is neither required nor the filing thereof proper. Stone v. McCann, 79 Cal. 460, 21 P. 863; Martin v. Hildebrand, 190 Cal. 369, 212 P. 618. It is further established that no one except the judgment debtor may move to quash a writ of execution or the levy thereof unless the judgment upon which it is issued, is or the writ if void on its face. Associated Oil Co. v. Mullin, 110 Cal.App. 385, 392, 294 P. 421; Vest v. Superior Court, 140 Cal.App.2d 91, 93, 294 P.2d 988. A levy cannot be quashed on the grounds that the judgment debtor has no interest in the property levied upon Vest v. Superior Court, supra, 140 Cal.App.2d at page 93, 294 P.2d 988; and cases there cited, and the court may not, in a proceeding had pursuant to the provisions of the Civil Code above referred to, define the interest of the judgment debtor in the property levied upon, or turn the proceeding into a plenary suit in equity in the nature of a creditor's bill. Strangman v. Duke, 140 Cal.App.2d 185, 192, 295 P.2d 12.
In the present case petitioner, as the judgment creditor of Pepe, had the right to bring an action in the nature of a creditor's bill to set aside the conveyance from Pepe to Mavis as being a fraudulent conveyance, or he had the right, under section 3439.09, subdivision (2), of the Civil Code, to 'Disregard the conveyance and attach or levy execution upon the property conveyed.' The property conveyed being subject to a valid homestead it was necessary, in the prosecution of the right thus given...
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