Martin v. Hildebrand

KERRIGAN, J.

The plaintiff having recovered a judgment for some eight hundred dollars against George H. Chiossi, one of the defendants herein, a writ of execution was issued thereon, and on September 24, 1920, levied upon real property of said defendant and his wife, consisting of a lot of land 25 feet wide by 127% feet deep, situate in the city and county of San Francisco, upon which was a two-story and basement dwelling-house. These persons had theretofore declared a homestead upon said premises, and the sheriff accordingly made his return to that effect and that he was unable to satisfy the judgment. Within sixty days from the date of the levy the plaintiff, acting under the provisions of section 1245 et seq. of the Civil Code, inade application to the court for the appointment of persons to appraise the value of the homestead, setting up in jhis application the facts required by section 1246 of said code, namely, that an execution had been levied upon the homestead, describing it, and that its value exceeded the amount of the homestead exemption, etc. This was served upon the homestead claimants. At the time appointed for .the hearing thereof they made no appearance, but the defendants Hildebrand and Lettieh appeared, having theretofore filed a so-called answer to said application. At the hearing they conceded the filing of said answer to be unauthorized, but requested that it be considered as an 'affidavit of the facts therein stated. In said answer or affidavit the allegations contained in the application for appointment of appraisers were not denied, but certain facts were alleged therein and offered as a ground for the denial of the application, the burden of which was that said Hildebrand and Lettieh were now the owners of said real property, having taken a conveyance thereof since the levy of said execution; that at the time of the levy it was encumbered by liens ranking prior to the homestead, the sum of which, added to the homestead exemption, was far in excess of its value—which, however, was conceded to be superior to five thousand dollars—so that a sale thereof could not produce anything to be applied to the satisfaction

[371]

of the plaintiff’s judgment. Upon those grounds they urged that the application for the appointment of appraisers should be denied. At this hearing the facts set up in the plaintiff’s application were not disputed, and it was also tacitly admitted, and the hearing conducted upon the theory, that the premises were of such a nature that they could not be divided and a part thereof to the value of the homestead exemption set off. Such evidence as was received was directed to the questions of the amount and priority of the liens upon the property in an effort by said defendants to sustain their contention that its sale would not bring an amount sufficient to leave anything applicable to the payment of the plaintiff’s judgment.