Phelps v. Loop

DORAN, J.

In the within action the complaint alleged in substance that plaintiff and appellant had obtained a judgment in the sum of $9,243.30 against defendants and respondents, which had become final; that a writ of execution duly issued was levied upon the property of defendants, who, within a few days, served the sheriff with a certified copy of a declaration of homestead on said property which had been recorded for some months, wherefore the writ was returned unsatisfied. Further appropriate allegations established the sufficiency of the complaint, the prayer of which was as follows:

“Wherefore, plaintiff prays that defendants may be required to answer this amended complaint; that this cause shall be set for trial at the earliest possible date, as provided by section 1062a of the Code of Civil Procedure, and that upon a trial thereof the court determine the validity of said declaration of homestead and declare and adjudicate the rights of the respective parties in and to said property.

Plaintiff prays that upon said trial the court find and determine that said declaration of homestead is a nullity and void, and that said real estate owned as aforesaid by the defendants is subject to the levy of execution

in said cause No. 70254, and that plaintiff now holds a valid lien and judgment on said property to the extent of her judgment, interest and costs as herein alleged.” (Italics added.)

At the trial of the action, following the necessary formal proof, plaintiff called defendant under section 2055 of the Code of Civil Procedure and proved the character of the property in question, which by reason thereof, according to plaintiff’s contention, could not, under the law, be impressed

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with a homestead. At the conclusion of plaintiff’s case a motion for nonsuit was granted. The appeal is from the judgment that followed.

Appellant submits the question on appeal as follows : “1. Where a property is constructed as an apartment house and is especially adapted to that purpose and is used for the primary purpose of carrying on the business of renting accommodations to the public, can it be declared the homestead of the owner? 2. Is an action for declaratory relief the proper remedy to determine the validity of the declaration of homestead and to determine if the property is subject to execution ? 3. In such action is it proper to grant a non-suit ? ’ ’