First-Trust Joint Stock Land Bank v. Meredith

California Court of Appeal Feb 3, 1937 No. Civ. 11225Published

Before: Crail

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Holding. The court held that a sheriff's sale conducted under a judgment that was subsequently reversed must be set aside, and that the motion to vacate such a sale should be heard by the court having proper venue over the underlying action.

Issues

Is an order denying a motion to set aside an execution sale appealable?
Must a sheriff's sale be set aside when the underlying judgment is reversed?
Does a court lacking proper venue for the trial of an action have authority to rule on a motion to set aside an execution sale?

Disposition. reversed

Quotations verified verbatim against the opinion

“When a judgment is reversed it becomes, in so far as the parties to the action are concerned, the same as if it had never been rendered and the foundation of any proceeding which may have been had by way of execution thereunder is taken away.”

“To be valid, the sale, if made to one of the parties to the litigation, must be had under a judgment which is valid, and there must be a new equity of redemption.”

CRAIL, P. J.

Plaintiff brought suit in the county of Los Angeles to collect moneys claimed to be due under the provisions of a promissory note secured by a mortgage on land in Iowa. Defendant filed an answer setting up a special defense. Plaintiff moved for judgment on the pleadings. This motion was granted and judgment rendered against the defendant. Defendant appealed from said judgment but gave no stay bond. Pending the appeal, plaintiff, under an execution issued on said judgment, caused the sheriff of Tulare County to sell certain real property belonging to defendant. Plaintiff purchased said property at the sheriff’s sale, and credited on the judgment the amount of the sale price less costs. Thereafter, the Supreme Court reversed the judgment and remanded the case for trial.

(First-Trust etc. Bank

Meredith, 5

Cal. (2d) 214 [53 Pac. (2d) 958].) When the matter again came before the trial court, defendant moved the court for an order changing the place of trial from the county of Los Angeles to the county of Tulare. This motion was denied, and defendant appealed from said order. Thereafter and while the appeal was pending defendant moved in the trial court to have the sale vacated on the ground that the judgment under which the sale had been made was now reversed. At the hearing plaintiff filed an affidavit, the substance of which was: (1) That defendant, subsequent to the filing of the abstract of said judgment, had executed quitclaim deeds to third parties, including her attorney, conveying her interest in the property; and (2) that the Supreme Court did not intend that said judgment be reversed unless defendant should prove victorious in the second trial. The motion was twice continued. In the meantime a trial of the action itself was had and the court rendered a second judgment for the plaintiff. Thereafter the motion to set aside the sale under the first judgment was denied. Defendant appealed from the second judgment and from said order. Thereafter the District Court of Appeal reversed the order denying a change of

[105]

place of trial.

(First-Trust etc. Bank

First-Trust Joint Stock Land Bank v. Meredith

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CRAIL, P. J.

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