Brodie v. Barnes

BISHOP, J. pro tem.

—A judgment entered March 11, 1941, in this action, decreed “that plaintiff is the owner of and entitled to recover the proceeds and avails of that certain Policy of Insurance No. 23738 W-1167 from defendant John Hancock Mutual Life Insurance Company, not to exceed the sum of $3365.03 and plaintiff’s costs herein; that the hereinafter described real property be sold by the Sheriff of said Los Angeles County, and the proceeds thereof, after payment of costs and expenses of sale be paid to plaintiff to the amount of $3365.03 less the amount secured to plaintiff from said Insurance above mentioned, and the balance be paid to the defendant, Evadna L. Barnes; ...”

On April 8, 1941, a Writ of Enforcement of Judgment Ordering Sale of Real Property was issued by the clerk of the trial court, addressed to the sheriff, and the sheriff sold the real property, described in the judgment and writ, for $300. The plaintiff was the purchaser.

An appeal was taken from this judgment, and it was reversed, in part

(Brodie

v.

Barnes

(1942), 56 Cal.App.2d 315 [132 P.2d 595]), but not as to the part ordering the sale of the real estate. After the reversal, a new trial was held and a judgment entered April 28, 1943, which had the effect of setting aside the reversal, for the new judgment was but a reiteration of the old. (See

Brodie

v.

Barnes, ante,

p. 1 [149 P.2d 899], decided by us this day.) A few days before the new judgment was entered plaintiff served notice that he was going to move to set the sale of the real estate aside upon the sole ground, appearing not in his notice of motion but in the supporting affidavit, that by the terms of the judgment the ascertainment of the proceeds of the insurance policy was a condition to be performed before it could be known whether or not a sale of said real property should be made. Plaintiff made his motion, as noticed, and it was granted. It is from the order vacating the sale that the defendants appeal.

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