Warburton v. Kieferle

• Decision Date: 30 August 1955
• Citation: 135 Cal.App.2d 278,287 P.2d 1
• Court: California Court of Appeals Court of Appeals
• Parties: Reva Rae WARBURTON, Plaintiff, v. Alice Louise KIEFERLE, State of California and County of Los Angeles, Defendants. Alice Louise KIEFERLE, Cross-Complainant and Appellant, v. Reva Rae WARBURTON, State of California and County of Los Angeles, Cross-Defendants and Respondents. Civ. 5080.

Page 1

287 P.2d 1

135 Cal.App.2d 278

Reva Rae WARBURTON, Plaintiff, v. Alice Louise KIEFERLE, State of California and County of Los Angeles, Defendants.

Alice Louise KIEFERLE, Cross-Complainant and Appellant, v. Reva Rae WARBURTON, State of California and County of Los Angeles, Cross-Defendants and Respondents.

Civ. 5080.

District Court of Appeal, Fourth District, California.

Aug. 30, 1955.

Leola Buck Kellogg, Redondo Beach, for appellant.

Chapman & Sprague, San Bernardino, for respondent Reva Rae Warburton.

Harold W. Kennedy, County Counsel of Los Angeles County, Los Angeles, and Wilcox R. Stoddard, Deputy County Counsel, Los Angeles, for respondent County of Los Angeles.

MUSSELL, Justice.

This is an action for partition of residential property situated in San Bernardino county. Defendant Alice Louise Kieferle answered and filed a cross-complaint to quiet title to the same property and for cancellation of the deed under which plaintiff acquired her interest therein. Defendant, State of California, by answer and cross-complaint claimed a lien on the property for sales tax, and the defendant, County of Los Angeles, claimed a lien thereon for medical care and general relief advanced to Joseph A. Kieferle.

The trial court decreed that plaintiff and defendant Alice Louise Kieferle are each the owners of an undivided one-half interest in the property involved and that the interest of defendant Alice Louise Kieferle is subject to a lien in favor of defendant County of Los Angeles in the amount of $1,045.42, and a lien in favor of the State of California for $114.44. The lien of the State has been released by the Attorney General and is not here involved. Defendant Alice Louise Kieferle appeals from the judgment.

It was stipulated in the trial court, in a written stipulation included in the clerk's transcript herein, that certain documents might be filed with the court and received and considered by the court as evidence upon the issues raised by the pleadings and that the matter be submitted on said documents and on certain agreed facts relative to the execution of plaintiff's deed, together with admissions of the truth of certain allegations in defendant's cross-complaint, which we are unable to identify from the record before us.

There is no reporter's transcript in this matter and we are therefore limited to a determination whether the pleadings state a cause of action and the findings are within the issues, whether the judgment is supported by the findings and whether reversible error appears on the face of the record. Chenoweth v. Office of City Clerk, 131 Cal.App.2d 498, 280 P.2d 858; Montaldo v. Hires Bottling Co., 59 Cal.App.2d 642, 646, 139 P.2d 666.

Where an appeal has been taken on the judgment roll alone the findings of the trial court are to receive such a construction as will uphold rather than defeat its judgment thereon, and whenever, from the facts found by it, other facts may be inferred which will support the judgment, such inference will be deemed to have been made. Goldberg v. List, 11 Cal.2d 389, 394, 79 P.2d 1087, 116 A.L.R. 900. The findings should receive a liberal construction to uphold rather than to defeat the judgment. Montaldo v. Hires Bottling Co., supra, 59 Cal.App.2d 646, 139 P.2d 666.

The following facts appear from the record. On January 10, 1949, Alice Louise Kieferle filed an action for divorce in Los Angeles county against Joseph A. Kieferle and on January 20, 1949, the court in that action made its order restraining both parties from transferring, disposing of and/or encumbering any of the community property except for the necessities of life and except as in the order provided. The order made no other provision concerning disposition of the property of the parties. Following the trial in the divorce action, findings of fact and conclusions of law, dated July 10, 1949, were prepared by the court. Objections to these findings were made by the attorney for Joseph A. Kieferle and a hearing was had thereon on July 15, 1949. The court then made certain corrections in the findings but made no changes affecting the property involved herein. The findings and conclusions, as corrected, and an interlocutory decree of divorce were signed, filed and entered on July 18, 1949. The interlocutory decree provided, among other things, that the real property here involved '(i)s hereby adjudged to be community property and is awarded to plaintiff and defendant in equal shares, each party to have an undivided one-half interest therein; provided that either party hereto may at any time within a year subsequent to entry of this interlocutory decree apply to this Court for an order appointing a Commissioner or referee to effect a sale of said property and account to each of the parties hereto for one-half of the net proceeds; provided further that during such year the parties shall have equal right to occupy the said premises or to join the other in a lease thereof, each accounting to the other for one-half the expenses and net proceeds.' No appeal was taken from this decree and a final judgment of divorce was entered on April 18, 1951, and the property of the parties was assigned therein in accordance with the provisions of the interlocutory decree.

Plaintiff Reva Rae Warburton is the daughter of Joseph A. Kieferle. On July 15, 1949, he executed, acknowledged and delivered to her a grant deed conveying to her an undivided one-half interest in the property involved herein. Plaintiff recorded this deed in San Bernardino county on July 19, 1949, and relies on it to establish her claim to partition of the property involved.

On May 10, 1950, Joseph A. Kieferle executed a mortgage on the property involved in favor of the respondent County of Los Angeles. This mortgage was executed for the purpose of securing the payment to said county for indigent aid and relief previously advanced to Joseph A. Kieferle, for which it was claimed that the sum of $1,045.42 was due. This mortgage was recorded in San Bernardino county July 13, 1950.

On September 13, 1949, an abstract of judgment in the Los Angeles divorce case was filed in the recorder's office of San Bernardino county and on September 13, 1951, the sheriff of San Bernardino county issued a Sheriff's Deed on Execution to Alice L. Wiedeman Kieferle, reciting therein that by virtue of an execution issued on July 10, 1950, upon a judgment recovered on the 18th day of July, 1949, in favor of Alice Louise Wiedeman Kieferle against Joseph A. Kieferle, he levied upon and sold the interest of Joseph A. Kieferle in the property herein involved, owned by Kieferle on August 25, 1950.

Appellant first contends that the deed to plaintiff executed by Joseph A. Kieferle on July 15, 1949, is void because it was made in defiance of a specific court provision. This contention is without merit.

In Erickson v. Municipal Court, 131 Cal.App. 327, 21 P.2d 480, it was held that a sale on execution by the sheriff, although in violation of a court order, was not void. See also De Albergaria v. American Trust Co., 126 Cal.App. 59, 60, 14 P.2d 324 and American Trust Co. v. De Albergaria, 123 Cal.App. 76, 78, 10 P.2d 1016. In 14 Cal.Jur. 281 it is said: 'A sale made in violation of an injunction is not merely void but voidable and will be relieved against only upon a proper showing by one entitled to the consideration of a court of equity.' In the early case of Bagley v. Ward, 37 Cal. 121, the court, in considering the effect of an execution sale and deed made in violation of an injunction, said: 'The cases all agree with those cited by the plaintiff, that a sale under such circumstances was a violation of injunction, and that pending the injunction Massett might have been punished therefor as for a contempt, and that during the same time both the execution and sale might, upon proper proceedings, have been set aside.'

In the instant case the preliminary injunctive order was ineffective when the interlocutory decree was signed by the court in the divorce action, awarding the property to the parties in equal shares and Joseph A. Kieferle was only executing a deed on July 15, 1949, to the interest which the court had found to be his in the findings prepared by it on July 10, 1949. No appeal was taken from the interlocutory or final decrees in the divorce action and appellant was bound by the provisions therein contained.

Appellant argues that the deed executed by Joseph A. Kieferle was void because made to defeat the rights of appellant. The record does not support this contention. The interlocutory and final judgments awarded appellant an undivided one-half interest in the property involved and her interest therein was not diminished by the questioned deed. The trial court found the allegation of fraud in appellant's answer to be untrue and its finding is supported by the record.

Appellant next contends that the...