Wehrle v. Marks

STURTEVANT, J.

On June 16, 1922, the plaintiff obtained judgment against the defendant G. M. Marks in the Superior Court of Alameda County for the sum of $1326.05. Execution issued upon said judgment on August 13, 1931, at the instance of plaintiff, and pursuant to order of court under section 685 of the Code of Civil Procedure. On August 17, 1931, the sheriff of Alameda County levied execution upon a 1928 Dodge sedan automobile, taking the same from the possession of the defendant G. M. Marks. After the said sheriff had levied and seized the said automobile, and before sale thereof, Field Finance Corporation, a corporation and third party claimant herein, on August 20, 1931, made and served on said sheriff its verified third party claim to said automobile, in which it set forth that said automobile so levied upon and held by said sheriff was the property of Field Finance Corporation, and demanding that said sheriff release to it said automobile. Thereupon plaintiff made and filed an affidavit and a bond as required by law, and delivered said bond and affidavit to said sheriff, and demanded that said sheriff proceed to sell said motor car in accordance with law in satisfaction of said judgment. (Code Civ. Pr'oc., sec. 689.) The sheriff thereupon sold the said automobile, and plaintiff thereupon filed its petition to try title thereto in this action. Notice of the hearing was duly given and a hearing was had before the trial court sitting without a jury. After the evidence was in the trial court

[143]

expressed its opinion orally. Treating that opinion as a judgment against it, the third party claimant has appealed. Both parties have briefed the case as though the trial court rendered a judgment and that such judgment was appeal-able. Conceding solely for the purpose of this appeal that counsel are right in their assumption, but expressing no opinion whatever thereon, we will proceed to take up the points made by the third party claimant.

It is the claimant’s contention the finding that the said automobile was at all times the community property of the defendant G. M. Marks and Venna B. Marks, his wife, was against the law and the evidence. No findings were made, but the point is only a different manner of saying that the trial court’s ruling was not sustained by the evidence. That contention we think is not well founded. In 1925 Gus M. Marks and Venna B. Marks were husband and wife. They were then living together and the record shows that they have since continued to live together. Mr. Marks was engaged in the real estate business. He deposited his moneys in a joint account in a branch of the Bank of America. On that account both husband and wife drew checks for their living expenses, etc., and Mr. Marks drew checks on it for business expenses. Mrs. Marks owned an old automobile. In May, 1928, a new Dodge sedan was bought. The old car was turned in and the vendor accepted it as payment of the first