Peebler v. Olds

WHITE, J. Following an arbitration agreed to for the purpose and object of winding up the affairs of the dissolved partnership of Byron Feebler and Ethel M. Feebler, husband and wife, and B. C. Olds, the award of the arbitrators was, upon application of Mr. and Mrs. Feebler, confirmed by the Superior Court of Los Angeles Comity, and judgment entered accordingly. Such judgment determined the status of the remaining obligations of the members of the partnership and their respective shares in the partnership property. Included in the partnership assets was certain real property, consisting of cemetery lots and graves, the partnership having been formed for the purpose of carrying on a cemetery known as “Olive Lawn Memorial Park.” By its judgment the court directed the sale of such real property and the fee therein, subject to any burial rights that might have been given, granted or licensed therein. The judgment also referred to certain personal property, including office equipment and certain machinery used for cemetery operation. For the purpose of consummating such sale, the court in its judgment designated a commissioner and ordered the sale to be conducted at public auction. The judgment further directed a division of the proceeds of such sale. By his return, the commissioner recited that pursuant to the terms of the judgment “and after due and proper notice,” the property was sold at public auction. There is also contained in the return a recital that all the personal property mentioned in the. judgment was present at the time of the sale.

Subsequent to the filing of the return of sale, which reported the amount of money obtained, the balance on hand, and its disposition, the court entered a further judgment, which in effect approved and confirmed the sale and awarded to Mr. and Mrs. Feebler a cash judgment against B. 0. Olds.

However, thereafter respondent B. C. Olds made a motion to set aside the commissioner’s sale, to cancel the deed and to set aside the second or further judgment. This motion was made upon the grounds that the notice specified by the Code of Civil Procedure for execution sales should have been published and posted, and that this legal requirement was omitted; that the personal property should have been exhibited as required by the Code of Civil Procedure in execution sales, but that this requirement was not complied with; that the commissioner’s deed was imperfect, in that it purported to [15]convey property not included in the order of sale; and finally, that the commissioner was advertising another sale, which presupposed that he had not already sold the property. In support of this motion respondent Olds’ attorney filed an affidavit wherein he alleged that the commissioner had not published or posted a notice of sale; that the commissioner gave no notice whatever, “as appears by his affidavit on file herein”; but we find no such affidavit in the record. The affidavit of respondent’s attorney further avers that the commissioner’s deed purports to convey property different from and other than that authorized to be sold by the judgment and different from that referred to in the return of sale, and that the sale of the personal property was made “without exhibiting the same as required by section 694 of the Code of Civil Procedure. ’ ’ In conclusion, the affidavit alleges that the commissioner was re-advertising a sale of the property, and because of the cloud occasioned by the prior sale, the contemplated and proposed future sale “will bring an inadequate price.” Following hearing on the motion, the court made an order vacating all proceedings taken by the commissioner; ordered that the deed made by him be “vacated, annulled and set aside,” and that the further judgment made following the commissioner’s return of sale be vacated. It is from such ruling by the court that this appeal is taken.