Oktanski v. Burn

California Court of Appeal Jan 11, 1956 No. Civ. 21307Published

Before: Doran

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Holding. The court held that a homestead declaration containing a correct street address is not rendered void by an additional, erroneous legal description of the property, as the street address sufficiently identifies the property.

Issues

Whether a homestead declaration is void for uncertainty when it includes both a correct street address and an incorrect legal description of the property.
Whether the trial court abused its discretion in granting a preliminary injunction to restrain an execution sale of property claimed as a homestead.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The only purpose of a description is to reasonably identify the property intended, and the description in a homestead declaration need not be more particular than in a conveyance.”

“In the instant case the street number is correctly given and no one could be misled by believing that any property was intended other than 740-742 Junipero Street.”

[420]

DORAN, J.

The respondents Oktanski instituted the present proceeding for the purpose of restraining the sale of certain real property located in Long Beach under a writ of execution issued on a municipal court judgment in an action by appellants Burn against the Oktanskis, on the ground that the property in question is a homestead. An order to show cause and temporary restraining order were issued; defendants filed a general demurrer and affidavits in opposition, and at the hearing a preliminary injunction was issued restraining the execution sale.

It is appellants’ contention that “The complaint does not state facts sufficient to constitute a cause of action”; that “The affidavits of Jack E. Grisham and Clem S. Oktanski do not contain facts sufficient to justify or support the issuance of a temporary restraining order and preliminary injunction”; and that “The uncontradicted facts set forth in the affidavit of Archie G. Cope in opposition to the order to show cause establish that the issuance of the preliminary injunction was erroneous.”

The complaint sets forth the entry of judgment on November 5, 1954, issuance of execution thereon in the amount of $2,057.54, and notice of sale under execution of plaintiffs’ property described as “Lot 7, Tract 1951, recorded in Book 21, Page 85 of Maps, records Los Angeles County, known as 740 Junípero Avenue, Long Beach, California.” It is further alleged “That on or about the 18th day of April, 1955, the plaintiffs did cause to be filed in said Case No. 81800, a Notice of Homestead and first Trust Deed which said notice is attached hereto”; that “said homestead exemption was executed on August 5, 1953 and was recorded on August 6, 1954”; and that notwithstanding said notice, the defendants are proceeding with the execution sale and will complete the sale unless restrained. The attached notice describes the property as “located at 740-742 Junípero Avenue, Long Beach, California,” no lot or tract number being given.

In support of the issuance of an injunction the affidavit of respondents’ attorney, Jack E. Grisham, avers the filing of the notice of homestead and defendants’ intention to proceed with the sale. The respondent Oktanski makes affidavit as to execution of a “declaration of homestead covering the property known as 740 Junípero Avenue, Long Beach, California, which is the property that said Sheriff proposes to sell under execution.”

Oktanski v. Burn

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DORAN, J.

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