Greitz v. Sivachenko

[850]

DRAPER, J.

Defendants appeal from a judgment ordering partition of real property by sale and division of the proceeds. By award filed August 5,1954, the Industrial Accident Commission ordered appellant Dimitri Sivachenko to make payments to respondent on account of injuries sustained in the course of the latter’s employment on September 29, 1953. Judgment on this award was entered in the superior court September 3, 1954. Appellants, as joint tenants, then owned the real property which is the subject of this action. On January 17, 1955, the sheriff, under execution issued upon the judgment, sold Dimitri’s interest to respondent. After expiration of the period for redemption, the sheriff deeded this interest to respondent, who commenced this action for partition. The trial court found that partition of the property is impractical, ordered its sale by a referee, the proceeds to go (1) to payment of expenses of sale, (2) to payment of respondent’s costs, and (3) the remainder to be divided equally between respondent and appellant Natalei Sivachenko. The court also ordered payment by appellants to respondent of $1,682.88, being half the rents received by appellants for said property from date of the sheriff’s sale.

Appellants, appearing in propria persona, filed a letter by way of “brief” herein. Much of this letter is concerned with asserted errors of the Industrial Accident Commission in the fact determinations of its 1954 award. However, this award is final (Lab. Code, § 5950) and, in any event, could be attacked only by writ of review filed in the Supreme Court or District Court of Appeal (Lab. Code, §§ 5950, 5955). This comment disposes of the issues directly raised by appellants’ “brief.” In view of the fact that appellants are not represented by counsel, we have, nonetheless, sought to find such points as they may, by inference or implication, have intended to assert.

It is asserted that appellant Dimitri received no notice of respondent’s intention to seek judgment upon the commission’s award. Apparently he argues that the judgment is void for that reason. But the proceeding for entry of judgment upon an award of the Industrial Accident Commission is plenary. Upon filing of a certified copy of the commission’s award and order, the clerk must immediately enter judgment. (Lab. Code, § 5806.) The clerk in entering the judgment, and the sheriff in levying execution under it, act as instrumentalities of the commission, and not of the superior court, which has no jurisdiction to stay or modify any