Lincoln v. Dreher

GRIFFIN, J. On May 5, 1932, plaintiff and respondent recovered a money judgment in the sum of $6,101 plus costs, against defendant and appellant Dreher and the Fairview Farms Company, of which Dreher was president, and against certain other named defendants.

[270]Within a few days thereafter, Dreher waived his right to move for a new trial and to appeal from the judgment. On June 7, 1932, Dreher signed two affidavits, which were prepared by Lincoln, to obtain the immediate appointment of a receiver for Dreher’s cojudgment debtors. Apparently, plaintiff forthwith obtained an execution on that judgment and levied upon certain lands claimed to be owned by the named defendants. Plaintiff obtained a sheriff’s deed of sale dated October 3, 1932. At the sale, he bid in the property for approximately $3,500, which amount was credited on this judgment, satisfying the judgment to that extent, leaving a balance of approximately $2,800, which partially satisfied judgment remained on the records of the court until July 24, 1950.

On that date, 18 years after the execution sale, Lincoln, upon his ex parte application and without notice to any judgment debtor, applied for and obtained, in another department, an order of the court which recites that,—It appearing from the affidavit of Lincoln that no defendant had any right or title to the property sold by the sheriff, and that Lincoln received nothing as consideration for his credit, it is ordered that the sale by the sheriff and the credit given is “annuled” and the judgment dated May 5, 1932, and duly recorded in book 39 of judgments “shall forthwith and hereafter be in full force and effect as if no credit had been given thereon.”

By the terms of the order it does, in effect, restore and revive the judgment to its original condition, as of the date of the credit. This order was based upon a showing by plaintiff that in an action by him seeking to quiet his title to the land involved in the sheriff’s deed, the court held his sheriff’s deed to be ineffective and inferior to a deed of trust previously executed on the same property.

On September 21, 1950, upon the ex parte application of plaintiff, he obtained an order directing Dreher to show cause why an execution upon the original judgment against him, in the full amount plus interest and costs, all totaling in excess of $14,000 should not be issued, and directing that he personally appear and be examined under oath in supplementary proceedings concerning his property. It purportedly restrained Dreher from thereafter dealing in any manner with his real and personal property. After a protracted hearing in which defendant submitted 20 affidavits and certain exhibits of record, and in which plaintiff submitted 10 affidavits, including certain other records, the court made findings