Phelps v. Loop

WOOD, J. This is an appeal by a judgment creditor from an order denying her amended petition for appointment of appraisers to appraise a homestead after levy of execution. Appellant, Mrs. Phelps, as plaintiff in an action in San Diego County against C. V. Loop and Ethel Loop to foreclose a chattel mortgage, obtained judgment on September 27, 1932, for $9,770.93 and for foreclosure. After crediting the judgment with the proceeds of the foreclosure sale, held on October 2, 1932, there was a deficiency judgment of $9',243.30. In June, 1940, appellant gave notice of motion for issuance of execution. On June 24, 1940, after the service of said notice, the judgment debtors filed their declaration of homestead claiming an apartment building in Los Angeles, consisting of sixteen separate apartments, as their homestead. Execution was issued July 29, 1940, and was levied upon said property on November 14, 1940. On December 11, 1940, the execution was returned wholly unsatisfied.

About December 16, 1940, appellant commenced a declaratory relief action in Los Angeles County to determine whether the property was subject to a homestead—it being appellant’s contention therein that a homestead on that kind of property was not valid.

On January 11, 1941, appellant filed a petition for appointment of appraisers to appraise the homestead, but did not serve it on the debtors or their attorney.

On May 11, 1944, it was decided in Phelps v. Loop, 64 Cal. App.2d 332 [148 P.2d 674] (the declaratory relief action), that the homestead was valid. On October 3, 1944, appellant obtained an alias writ of execution upon the same deficiency judgment above mentioned, and that writ was levied on the same property on November 30, 1944. On January 24, 1945, appellant filed the amended petition for appointment of appraisers, which is involved herein.

[41]Section 1245 of the Civil Code provides: “When an execution for the enforcement of a judgment obtained in a case not within the classes enumerated in section 1241 is levied upon the homestead, the judgment creditor may at any time within sixty days thereafter apply to the superior court . . . for the appointment of persons to appraise the value thereof, and if such application shall not be made within sixty days after the levy of such execution the lien of the execution shall cease at the expiration of said period, and no execution based upon the same judgment shall thereafter be levied upon the homestead. ’ ’