Vest v. Superior Court

KAUFMAN, J.

Petitioner filed herein a petition for an alternative writ of mandate and thereafter this court issued an alternative writ. A return was thereafter filed and the matter was then duly argued before the court.

On July 22, 1955, petitioner recovered a money judgment against Charles Astikian (Civ. No. 441686) for conversion of personal property. On November 9th following, petitioner caused an execution to be issued on the judgment directed to the sheriff of the city and county of San Francisco, who, pursuant to this writ, levied upon Astikian’s interest in certain real property, which at that time stood in the name of his wife, Sally.

Prior to this transaction, on October 2, 1952, Astikian and his wife had jointly declared a homestead upon this property. On July 8, 1955, Sally Astikian filed a divorce action in the Superior Court of San Francisco and on July 25, the court entered an interlocutory judgment of divorce whereby it found that the real property in question was community property and awarded it entirely to the wife.

On the 18th of November, 1955, petitioner filed an application in the superior court for the appointment of appraisers to appraise the homestead, alleging upon information and belief that the property in question was worth $25,000 and that the maximum amount under the homestead declaration was $12,500.

On November 28, Sally Astikian served the petitioner with a notice of motion to set aside and quash the said execution on the grounds that Charles Astikian did not have any right, title or interest in the real property at the time the sheriff

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levied the execution. Sally Astikian was not a party to the action instituted by petitioner against Charles Astikian.

On December 1, petitioner’s application for the appointment of appraiser to appraise the homestead and respondent’s motion to quash and recall the writ of execution were heard together. No one appeared to oppose the application for the appointment of appraisers, but the petitioner offered opposition to the respondent’s motion to quash and recall the writ by introducing the file in the divorce action including the interlocutory decree of divorce wherein the court determined that the property in question was community. The motions were submitted and on January 26, 1956, the court made its order granting the motion to set aside and quash the execution but made no formal decree regarding the petitioner’s application for appointment of appraisers.