Ruddell v. Warne

McCOMB, J. Defendants appeal from an order of the trial court directing a sale of homesteaded property under a writ of execution issued upon a judgment in favor of plaintiff.1 There are also appeals from incidental orders made in connection with the foregoing order. Since our decision on the main appeal disposes of the questions involved on appeal from the other orders, it will not be essential to give consideration to them other than the views herein expressed.

The essential facts are these:

The writ of execution on the judgment which plaintiff had obtained against defendants was issued on September 20,1944, and the order directing the sale of the homesteaded property of defendants pursuant to the writ of execution was made on October 5, 1945.

There are two questions necessary for our determination: First: Is the order of the superior court directing a sale of homesteaded property an appealable order?

This question must be answered in the affirmative and is governed by these pertinent rules:

(1) Orders made pursuant to the provision of section 1245 et seq., of the Civil Code are not considered special orders made after judgment, but such orders are special independent proceedings. (Brown v. Starr, 75 Cal. 163, 164 et seq. [16 P. 760].)

(2) It is a general rule that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of an order, such order is final; but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the order is interlocutory. (Lyon v. Goss, 19 Cal.2d 659, 670 [123 P.2d 11].)

Applying the foregoing rules to the facts in the instant [909]case it appears that the order2 under consideration was made in a special and independent proceeding and no further judicial action upon the part of the court was necessary. The only thing remaining to be done was for the sheriff or other proper officer to comply with the order. Therefore under rule two, supra, it was final and appealable. (Stockton S. & L. Bank v. Mello, 201 Cal. 194, 198 [256 P. 202].)

Second: Was the order directing the sale of homesteaded property void because it was not made within one year after the writ of execution upon which it was predicated had been issued?