Stockton Savings & Loan Bank v. Mello

SHENK, J.

This is an appeal from an order denying the petition of a judgment creditor for the appraisement of a homestead in a proceeding taken pursuant to sections 1245-1259, inclusive, of the Civil Code.

In the superior court in and for the county of San Joaquin, the petitioner on November 20, 1924, obtained a judgment against the defendant John V. Mello for the sum of $4,818. On December 10, 1924, an execution was issued

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on said judgment and levied on certain real property in Kings County on which the defendant John Y. Mello, as head of a family, had, on February 15, 1924, duly declared a homestead. The said defendant thereupon demanded that the sheriff desist from selling the homestead property, and in an action commenced by him in the superior court in and for the county of Kings, obtained an injunction' prohibiting such sale. On February 14, 1925, the petitioner filed its verified petition alleging the matters required to be shown by section 1246 of the Civil Code, including the allegation, on information and belief, that the said property at the time of the homestead declaration was and is of the reasonable value of $15,000, and praying that the court appoint three disinterested persons to appraise the value of said homestead.

The petition came on regularly for hearing on March 2, 1925. It was stipulated that due service had been made on the defendants of the petition and of the notice of the time and place of hearing as required by section 1248 of the Civil Code. It was also stipulated that all of the allegations of the petition were true with the exception of the allegation that the homestead claimed by the defendants was and is of a reasonable value in excess of $5,000, to wit, of the value of $15,000. In support of the allegation of the petition that the said property was worth in excess of the homestead exemption of $5,000, the petitioner produced two witnesses, each of whom testified that said property was of the market value of $8,000. Petitioner then rested, whereupon the defendant produced six witnesses, each of whom testified that the market value of said property was $4,500, and the matter was submitted for decision. On March 9, 1925, the court made and entered its order denying said petition, from which order, being a final determination of the matter so far as the superior court was concerned, this appeal is prosecuted.