Kenyon v. Erskine

• Decision Date: 19 June 1912
• Citation: 69 Wash. 110,124 P. 392
• Parties: KENYON et ux. v. ERSKINE et al.
• Court: Washington Supreme Court

124 P. 392

69 Wash. 110

KENYON et ux. v. ERSKINE et al.

Supreme Court of Washington

June 19, 1912

Department 2. Appeal from Superior Court, King County; H. A. P. Myers Judge.

Action by Delno P. Kenyon and wife against Walter B. Erskine and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Howard O. Durk, for appellants.

Charles H. Miller, of Seattle, for respondents.

FULLERTON J.

On March 23, 1911, the appellant Walter B. Erskine duly obtained a judgment against the respondents, Delno P. Kenyon and Ella M. Kenyon, husband and wife, in a justice court of King county for the sum of $99.92. On May 12, 1911, he caused a transcript thereof to be filed in the office of the county clerk of King county, pursuant to the provisions of section 450 of the Code (Rem. & Bal.), providing the manner in which a judgment of a justice of the peace shall be made a lien upon the real property of a judgment debtor. The judgment debtors at that time owned lot 5, and the E. 1/2 of lot 6 in block 7 of Baltimore's addition to the city of Seattle on which they were residing. On May 19, 1911, Delno P Kenyon, the husband executed and acknowledged and caused to be filed for record a declaration of homestead, conformably to the statutes, in which he claimed the property above described as a homestead and exempt from execution and attachment to the extent of $2,000 in value. Thereafter the appellant caused an execution to issue on the judgment to the sheriff of King county, who levied upon the homestead property and advertised the same for sale in the manner in which property is ordinarily sold on execution. This action was thereupon brought to enjoin the sale. A temporary injunction was issued, which was afterwards made permanent, and the respondents allowed to recover costs. This appeal followed.

The appellants contend that the filing of the declaration of homestead on the property sought to be sold subsequent to the time the transcript of the judgment of the justice of the peace was filed with the county clerk did not have the effect of superseding or postponing the lien of such judgment; but on the contrary, the right acquired by filing the declaration was subsequent to and subject to the lien, and hence a sale of the property could be had under an execution in the same manner that it could have been so sold had the declaration of homestead not in fact been filed. Briefs were filed by counsel for the respective parties in which the question has been exhaustively argued; but in view of the case of Snelling v. Butler, 66 Wash. 165, 119 P. 3, decided since the briefs were written, we have not found it necessary to follow the argument in detail. In the case cited the facts are exactly parallel to the facts in the case at bar, and we there held that the lien of the judgment was superseded and rendered nonenforceable on the...