Milstein v. Turner

DORAN, J.

The present appeal is from a judgment quieting title in the plaintiff to certain lands in Los Angeles ' County. The plaintiff Milstein relied on a sheriff’s deed which in turn was based upon a sale under execution issued by the Municipal Court of the City of Los Angeles more than nine years after judgment. Records of the municipal court, introduced in evidence by defendant, showed the execution of a promissory note by defendant, dated December 8,1928, secured by a deed of trust on certain real property, which property

[297]

was sold under the trust deed on January 22, 1933. On February 9, 1934, a deficiency judgment for $614.28, plus attorney fees and interest, was entered in the municipal court, the defendant’s default having been previously entered therein. An execution issued August 26, 1937, was returned

nulla bona-,

examination of the judgment debtor on supplementary proceedings, November 8, 1938, likewise resulted in a return of no property found.

On June 18, 1942, the respondent Milstein purchased the 1934 judgment against Turner for $250, and thereafter filed in the municipal court a notice of motion “for an order directing the issuance of an execution on the ground that the judgment heretofore rendered remains wholly unsatisfied, and that due diligence was exercised in attempting to enforce collection thereof.” An accompanying affidavit by M. M. Milstein recited that execution had been returned unsatisfied; that Turner had been ‘ ‘ examined as a judgment debtor in an effort to ascertain whether or not he possessed any assets; that after his examination he was discharged, no assets having been discovered; that affiant is informed that said defendant is now the owner of real estate at 9050 Zamora” in the city of Los Angeles, and a Ford automobile.

On March 2, 1943, the municipal court ordered the issuance of an execution as prayed, the record reciting: “Plaintiff appearing by Joe Wapner; Defendant not appearing.” As appellant’s brief avers, there is no record showing of any service of the notice of motion on the defendant. There is, however,” as stated by respondent, “to be found in the records what is commonly known as a ‘return receipt’ issued by the Post Office which indicates that appellant received from the office of respondent’s counsel on February 15, 1943, a registered parcel.”