Vest v. Superior Court In and For City and County of San Francisco

• Decision Date: 21 March 1956
• Citation: 140 Cal.App.2d 91,294 P.2d 988
• Parties: Gerald VEST, Plaintiff and Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, and Honorable Theresa Meikle, Judge thereof, Sally Astikian and Charles Astikian, Real Parties in Interest. Civ. 17118.
• Court: California Court of Appeals Court of Appeals

Page 988

294 P.2d 988

140 Cal.App.2d 91

Gerald VEST, Plaintiff and Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, and Honorable Theresa Meikle, Judge thereof, Sally Astikian and Charles Astikian, Real Parties in Interest.

Civ. 17118.

District Court of Appeal, First District, Division 2, California.

March 21, 1956.

Ralph Leon Isaacs, Albert J. McGuire, San Francisco, for petitioner.

John K. Hagopian, San Francisco, for respondents real parties in interest.

KAUFMAN, Justice. $Petitioner filed herein a petition for an alternative writ of mandate and thereafter this court issued an alternative writ. A return was thereafter filed and the matter was then duly argued before the court.

On July 22, 1955 petitioner recovered a money judgment against Charles Astikian (Civil, No. 441686) for conversion of personal property. On November 9th following, petitioner caused an execution to be issued on the judgment directed to the Sheriff of the City and County of San Francisco, who, pursuant to this writ, levied upon Astikian's interest in certain real property, which at that time stood in the name of his wife, Sally.

Prior to this transaction, on October 2, 1952, Astikian and his wife had jointly declared a homestead upon this property. On July 8, 1955, Sally Astikian filed a divorce action in the Superior Court of San Francisco and on July 25, the court entered an interlocutory judgment of divorce whereby it found that the real property in question was community property and awarded it entirely to the wife.

On the 18th of November, 1955, petitioner filed an application in the Superior Court for the appointment of appraisers to appraise the homestead, alleging upon information and belief that the property in question was worth $25,000 and that the maximum amount under the homestead declaration was $12,500.

On November 28, Sally Astikian served the petitioner with a notice of motion to set aside and quash the said execution on the grounds that Charles Astikian did not have any right, title or interest in the real property at the time the sheriff levied the execution. Sally Astikian was not a party to the action instituted by petitioner against Charles Astikian.

On December 1, petitioner's application for the appointment of appraiser to appraise the homestead and respondent's motion to quash and recall the writ of execution were heard together. No one appeared to oppose the application for the appointment of appraisers, but the petitioner offered opposition to the respondent's motion to quash and recall the writ by introducing the file in the divorce action including the interlocutory decree of divorce wherein the court determined that the property in question was community. The motions were submitted and on January 26, 1956 the court made its order granting the motion to set aside and quash the execution but made no formal decree regarding the petitioner's application for appointment of appraisers.

Petitioner contends that this order was made in excess of the jurisdiction of the court and that he does not have a plain, speedy and adequate remedy in the ordinary course of law for although the order is appealable, an appeal will not adequately safeguard his interests.

Petitioner contends that the trial court abused its discretion in quashing the writ of execution. It is the general rule that none but the parties to the action who are liable to be injured can move for recall of the writ, 23 C.J., Executions, sec. 426, p. 541, 33 C.J.S., Executions, § 144, unless the judgment upon which it issued or the writ is void on its face. In such cases it has been held that subsequent purchasers, lienholders and execution and judgment creditors may so move, 23 C.J., Executions, sec. 426, p. 542, 33 C.J.S., Executions, § 144, and cases cited; Dorland v. Smith, 93 Cal. 120, 28 P. 812; Montgomery v. Meyerstein, 195 Cal. 37, 231 P. 730. In the present case, however, the judgment is valid upon its face, and the execution issued thereon was regular in form. Under such circumstances it is well settled that the court has no power to vacate an execution for the omissions or acts of the sheriff after the writ has duly come into his hands, 23 C.J., Executions, sec. 424, p. 540, 33 C.J.S., Executions, § 143. Hence it has been held that a levy upon property exempt from execution is not a reason for recalling the writ, Roth v. Insley, 86 Cal. 134, 24 P. 853; nor can the levy be quashed on the ground that the judgment debtor has no interest in the property levied upon, as strangers to the action have means provided by law for protecting their rights, 23 C.J., Executions, sec. 285, p. 470, 33 C.J.S., Executions, § 109; Bancroft Code Practice and Remedies, sec. 1999, p. 2630. Associated Oil Co. v. Mullin, 110 Cal.App. 385, 392, 294 P. 421; Roth v. Insley, 86 Cal. 134, 24 P. 853, 11 Cal.Juris. §§ 58, 64.

Petitioner further contends that the real property which is held under the execution, being the community property of Charles and Sally Astikian, is liable for the debts of the husband.

Under the interlocutory decree of divorce entered on July 25, 1955 the court awarded all the community property of the spouses to the wife (the grounds for divorce being the extreme mental cruelty of the husband) and found that the real property in question was community. Petitioner maintains that since the cause of action accrued during marriage and judgment was entered in his conversion action prior to the interlocutory decree, it was a debt chargeable to community property and the wife took such property subject to all burdens for community debts.

In Bank of America Nat. Trust & Savings Ass'n v. Mantz, 4 Cal.2d 322, 49 P.2d 279, a husband and wife entered into a property settlement agreement prior to divorce whereby each spouse acknowledged ownership by the other of a one-half interest in certain real property title to which had been taken by the spouses in a deed describing them as joint tenants. In the divorce action which ensued the court...