Coakley v. Swim

SEAWELL, J.

This appeal is taken by the defendant from a judgment quieting plaintiff’s title to her homestead and removing therefrom a cloud which was cast thereon by defendant asserting an interest therein, arising out of an action entitled

Siuim

v.

James K. and Elizabeth Coakley,

husband and wife, commenced by defendant Swim upon an assigned claim on account of hospital care and attention rendered to James K. Coakley, husband of Elizabeth Coakley, plaintiff herein. Said action terminated in a judgment in favor of plaintiff and against said Coakleys for the sum of $163, together with costs taxed at $8.55 and interest in the sum of $8.45. Respondent herein, Elizabeth Coakley, on May 31, 1927, long prior to the commencement of said action and before said indebtedness was incurred, made and filed a declaration of homestead on the real property affected by this action for the joint benefit of herself, her husband and two minor daughters. It is not disputed that said homestead was selected as provided by law, or that it has not been abandoned or in anywise lost or become subject to the lien of third parties, unless the proceedings taken by plaintiff therein (appellant in this action) has impressed said homestead with the lien of appellant herein as asserted by him. The facts upon which the contending parties rest their respective claims follow.

[342]

On April 13, 1928, the defendant Swim commenced an action against said Coakley to obtain a judgment on account of said assigned claim for hospital services. Five months after the filing of said action, to wit, September 12, 1928, while said homestead was, and for more than a year prior to the commencement of said action had been, a valid and subsisting homestead, the defendant herein caused a writ of attachment to issue, which was levied by the sheriff upon said homestead. Thereafter he recovered judgment for said sum of $163.95, together with costs. He thereupon caused to be filed and recorded with said city and county recorder an abstract of said judgment, and by virtue of this abstract of judgment and said attachment he claims that said homestead has become impressed with a lien.

By a cross-complaint defendant specially asserts a lien upon said homestead by virtue of the levy made of a writ of attachment, without taking any other or further proceedings.