McGrath v. Kaelin

TYLER, P. J.

This action is one brought by plaintiff to establish an interest in certain real property by reason of an alleged judgment lien.

The amended complaint sets forth the following facts: On the nineteenth day of August, 1915, one J. H. W. Riley recovered a judgment of foreclosure and sale of certain real property against one Wallace Clark and his wife Illma. This judgment was entered on the twenty-third day of August, 1915. Thereafter, on the sixteenth day of September following, a deficiency judgment in said cause was entered and docketed in the office of the clerk of the court in favor of Riley and against the Clarks for the sum of $711.05, which judgment, it is alleged, has never been paid or satisfied and has been in full force and effect continuously up to the time of the commencement of the action. Thereafter, on or about the tenth day of September, 1917, and while such judgment was enforceable, Wallace Clark purchased and became the owner in fee of the real property here in question, with full knowledge by defendants in the

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instant case. It is then alleged that the judgment against Clark and his wife became and was on said tenth day of September, 1917, a lien against said real property. Further allegations are to the effect that defendants herein claim an estate or interest adverse to the plaintiff which is inferior to and subject to the judgment lien. The mode or manner of the acquisition of such interest is not pleaded. ’The assignment by Riley of his interest in said judgment to plaintiff is then alleged, and the complaint prays for the usual relief.

Defendant Kaelin and his wife demurred to the amended complaint upon various grounds. The demurrer was sustained, and, plaintiff declining to amend, judgment was entered in favor of respondents. The plaintiff appeals.

In paragraph V of their demurrer respondents urged that "the deficiency judgment is defectively pleaded, since it cannot be ascertained from the recitals how it was continued in full force and effect, and in paragraph VII thereof they alleged that the cause of action upon which plaintiff and appellant relied was barred by the provisions of section 336, subdivision 1, of the Code of Civil Procedure. This brings us to the controlling issue raised by the pleadings, namely, whether or not a lien existed at the time this proceeding was instituted.