Siddall v. Haight

CHIPMAN,C.

—Action for neglect of professional duty as attorney for plaintiff. Defendant had judgment on motion for nonsuit, from which and from the order denying his motion for a new trial plaintiff appeals.

Defendant was the attorney for plaintiff in an action against one Robert Thompson, against whom plaintiff recovered judg

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ment for $879.99, on May 18,1891. The lien of this judgment expired May 18, 1893. Plaintiff, testified that he employed defendant on April 1, 1893, to cause levy of execution to be made on certain real property (admittedly the only property in which Thompson had any alleged interest, and out of which alone the judgment could be collected, if at all), being a lot situated in the city of San Francisco. On April 20th, plaintiff paid defendant twenty dollars, of which ten dollars was to go on account of his fees, and ten dollars to pay sheriff’s fees for levying execution. Execution was sued out the next day, April 21st, and put in the sheriff’s hands, but for some unexplained reason was returned to defendant, and was by him again given to the sheriff, April 25th, and levied. There would have been timé to advertise the sale before the expiration of the lien, had the notice been published promptly, but here again, for reasons not clearly appearing, but apparently because the cost of publishing the notice was not prepaid, the publication did not begin until about May 25th, and the day of sale was fixed for June 19th. On the 19th of June, before the hour of sale, Mrs. Thompson filed a declaration of homestead on the lot in question. On account of this homestead being filed, and because of defendant’s absence at the time, the sheriff adjourned the sale for a day, and what afterwards took place does not appear. It seems to be conceded by both parties, what is undoubtedly the law, that the execution and levy did not extend the judgment lien, and hence no enforceable judgment lien existed at the time the sale was advertised to take place, the property being then exempt from forced sale by virtue of the homestead. (Civ. Code, secs. 1240, 1241.)

It was admitted that if Thompson had no interest in the lot in question, he was insolvent. It follows that if this lot belonged wholly to Mrs. Thompson as her separate property, it becomes immaterial whether defendant was negligent in failing to have it sold on execution; and this would be true, regardless of the homestead. Plaintiff introduced in evidence the complaint, answer, and judgment in a certain action brought by the administratrix of the estate of Jane Peebles, deceased, against Elizabeth M. Thompson, who was the wife of Robert Thompson, but he was not made a party defendant. The action was to quiet plaintiff’s title as administratrix to the lot in question, and it was alleged that defendant, Mrs. Thomp