Mattern v. Carberry

SHOEMAKER, J.

Defendants and appellants Edward Pierce and Betty Pierce appeal from a default judgment enjoining an execution sale of plaintiff and respondent Ida Mattern’s real property.

The facts are without dispute. Respondent took title to the property in question by a grant deed from Bertie Parkhurst executed April 1, 1950, and recorded on April 24, 1950. On July 6, 1950, the appellants Pierce brought suit in the Superior Court of Marin County against Parkhurst on an indebtedness that had existed for some time prior to April 1, 1950, and were awarded a judgment on January 31, 1952, in said action. The respondent was not a party to that action and the appellants did not have a judgment against her.

The appellants Pierce also filed suit against respondent and Parkhurst in the San Francisco Superior Court on January 10, 1952, to set aside the conveyance as fraudulent. That action was dismissed in September 1957 by the court for failure to bring it to trial within five years after filing. (Code Civ. Proc., § 583.)

The defendant Carberry, Sheriff of the City and County of San Francisco, acting under a writ of execution issued out of the Superior Court of Marin County, levied execution upon respondent’s San Francisco real property on August 15, 1957. The respondent filed the present action to enjoin

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the execution sale on August 28,1957. The appellants’ answer, which sets forth the defense of fraudulent conveyance, was stricken by the court on the ground that dismissal of their prior suit was res judicata on the issue, and the default judgment, the subject of this appeal, was thereafter entered in July 1959.

A creditor may take action against a fraudulent conveyance by suing to have it set aside or he can disregard the conveyance and levy execution upon the property. (Civ. Code, § 3439.09.) Such remedies are alternatively available to a defrauded creditor.

The sole issue raised on appeal, the availability of levying execution on respondent’s property, depends upon whether the dismissal of appellants’ suit to set aside the conveyance for fraud for lack of prosecution was res judicata upon the question of fraudulent conveyance.