Ruddell v. Warne

WOOD (W. J.), J.

Defendants have appealed from an order of the superior court granting plaintiff’s motion for the issuance of execution more than five years after the entry of judgment.

Plaintiff obtained a judgment on June 13, 1938, against defendant Walter E. Warne in the sum of $8,176.60 for injuries suffered in an automobile accident in which plaintiff was injured. At the same time plaintiff obtained judgment against defendant Kenneth Warne, who was the owner of the automobile being driven by his father, in the sum of $5,000. A writ of execution was issued on October 7, 1938, which was returned unsatisfied. Defendants were examined on supplementary proceedings on November 1, 1938. A similar order was made for the appearance of defendants on September 21, 1941, but they were excused without examination because it appeared from a co3iference then held that Kenneth Warne was about to enter the Navy and that both defendants were without property other than the homestead dwelling hereinafter referred to. Nothing further was done towards realizing on the judgment until August 16, 1944, when plaintiff filed an affidavit and asked that an order be made for the issuance of execution under the provisions of section 685 of the Code of Civil Procedure. The motion was heard upon plain

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tiff’s affidavit and that of defendant Walter B. Warne and the court made the order from which the appeal is now prosecuted.

From the affidavits it appears that defendant Walter B. Warne and his wife purchased a lot and constructed a dwelling thereon in 1928 at a total cost of $4,800. They have lived on the property since that time. On June 14, 1938, a declaration of homestead was filed upon the property. From plaintiff’s affidavit, executed on September 16, 1944, the statement appears “that within three months last past, the aforesaid homesteaded real property has greatly enhanced in value and is now of the value of $8500.00 to $9500.00, all in excess of $5000.00 allowed the defendants, or either of them as a homestead.”

The protection afforded by a declaration of homestead is limited to $5,000 in value and when the homesteaded property is enhanced in value any excess over the statutory limit of $5,000 is subject to the claims of the creditors of the owner.