Zimberoff v. Bank of America National Trust & Savings Ass'n

SHINN, P. J.

On November 3, 1947, Sam and Harriet Zimberoff, being the owners of an undivided interest in real property, executed and filed of record a declaration of homestead; July 6, 1948, the defendant bank caused to be levied on the property an attachment in an action against Zimberoff and wife; November 29, 1950, Zimberoff and wife brought the present action to quiet title; December 27, 1950, they sold and conveyed by grant deed to plaintiffs David M. Hertz and Reba S. Hertz, their half interest in the property for $7,625. At the time of trial the bank held a judgment against Harriet Zimberoff in the attachment action in the amount of $1,327 and interest; an abstract of judgment had been recorded prior to the deed to Hertz but the action in which judgment had been obtained was still pending and undetermined against Sam Zimberoff. Execution had been issued and levied but no sale had been made. Hertz and wife were joined as plaintiffs after they purchased the property.

The decree read as set out below.

1

Plaintiffs Zimberoff appeal from the judgment; Hertz and wife do not appeal.

[557]

The bank filed an amended answer alleging the property-had been conveyed to Hertz and wife and that the homestead was thereby abandoned. Thereafter on motion of Zimberoff and wife they, with Hertz and wife, were substituted as plaintiffs instead of the Zimberoffs alone.

After the conveyance to Hertz and wife they could have been substituted as plaintiffs or the action could have been maintained ip the names of Zimberoff and wife. (Code Civ. Proc., § 385.) If there had been no substitution

the Zimberoffs would have maintained the action, including proceedings on appeal, for the benefit of their grantees.

(Knobloch

v.

Associated Oil Co.,

170 Cal. 144 [148 P. 938]. Since the Zimberoffs remained as parties plaintiff they would have had a right to prove they had not conveyed the property, or that they retained some interest in it. The record contains no such evidence, but, upon the contrary, establishes that they have parted with all interest in the property. After the substitution was made the Zimberoffs were representing themselves alone. As to the plaintiffs Hertz the judgment is final and must be affirmed. Upon the record that is before us it appears that the Zimberoffs are not aggrieved by the judgment and that it should be affirmed as to them also.