Brouwer v. Superior Court

WORKS, P. J.

The petition in the proceeding alleges that petitioners are husband and wife, that R. L. Butcher, incorrectly named as a respondent, was plaintiff in respondent court in an action in which petitioners were defendants, that Sally Williams, also incorrectly named as a respondent, was the assignee from Butcher of a judgment rendered in the action, that E. W. Biscailuz, also improperly named as a respondent, is sheriff, as stated in the title of the proceeding, that Butcher, under three counts on contract, commenced an action against petitioner in respondent court, that on a certain date petitioners filed a petition in bankruptcy in the United States court and were at once, according to law,

[165]

adjudicated bankrupts, that Butcher filed claims against petitioners in the bankruptcy matter upon the choses in action involved in the action in which he was plaintiff, they being claims provable against the bankrupts under the law, and received

pro rata

payments thereon arising from a disposition of property of the bankrupts through the bankruptcy proceeding, that thereafter, unbeknown to petitioners, Butcher procured judgment by default against them in the action, that thereafter petitioners made application for discharge in the bankruptcy proceeding, that petitioner Evelyn Brouwer was granted discharge hut that the application of petitioner John C. Brouwer was contested by Butcher and that his discharge has not yet been granted, that a hearing on Butcher’s contest was set for January 5, 1933, before a referee in bankruptcy, and that the contest is still pending, that after the discharge in bankruptcy of Evelyn Brouwer and pending the bankruptcy proceeding of John C. Brouwer, Butcher procured writ of execution to issue for the enforcement of his default judgment aforesaid, that thereafter petitioners filed in respondent court notice of motion to quash the writ of execution, that while said notices of motion were pending Butcher assigned his judgment to Sally Williams, that thereafter, and prior to the hearing of the notice of motion to quash, Sally Williams procured, in the name of Butcher, issuance of a writ of execution for the enforcement of her judgment and procured an order of sale requiring the sheriff to sell, under the writ, certain livestock, dairy cows and other dairy equipment and supplies, that all of the described property is community property of petitioners and has been acquired by them, and from money earned by them, since they were adjudicated bankrupt, that the sheriff has served garnishment under the writ of execution procured by Sally Williams and thereby has realized more than the sum of $600 belonging to petitioners, that the sheriff has given notice that on a certain date he will sell the dairy property levied upon by him as aforesaid, that petitioners gave notice of motion to quash the writ of execution procured by Sally Williams and to stay permanently execution against them, that at the time set therefor the motions of petitioners to quash and for stay of proceedings came on for hearing before respondent court, that at the hearing petitioners presented affidavits showing the various material