Beverley v. Biscailuz

WOOD (Parker), J. Defendant, as sheriff, sold certain real property under a writ of execution to a judgment creditor for the' amount of the judgment, interest, and costs. That amount was more than the amount stated in a writ of attachment that had been levied, in the same action, upon the property. Plaintiff had acquired the property after the attachment had been levied and before the execution sale. The present action is to recover from the sheriff the amount which was in excess of the amount stated in the writ of attachment (plus interest thereon at 10 per cent per month and 25 per cent thereof as damages, under Gov. Code, § 26680). Judgment was for defendant. Plaintiff appeals.

[516]The record on appeal consists of the judgment roll and a stipulation hereinafter referred to.

Appellant states in his brief that the matter was submitted for judgment upon a “Stipulation of Facts” and “certain oral stipulations which were embodied in the” findings of fact and conclusions of law. He also states that “he has no quarrel with the Trial Court in so far as the facts it found are concerned,” but he does complain about the legal conclusions of the trial court.

The court made findings as follows:

On July 27, 1948, the defendant, as sheriff of Los Angeles County, levied a writ of attachment in the amount of $5,408.86, upon real property in Los Angeles County owned by E. Hagan, which writ was issued by the Superior Court of Alameda County in an action wherein the Carnation Company was plaintiff, and E. Hagan was a defendant.

On August 19, 1948, Hagan conveyed the property, subject to said attachment, by grant deed to one Streff, and on that date Streff executed a purchase money mortgage in favor of Hagan for $75,000; the deed was recorded August 20, 1948, and the mortgage was recorded August 23, 1948.

On September 23, 1948, Hagan assigned said mortgage, subject to said attachment, to plaintiff Beverley herein; the assignment was recorded on said day; on September 10, 1949, plaintiff acquired said property by grant deed from Streff and since that date plaintiff has been the owner of the property.

On April 10, 1949, the Carnation Company amended its complaint by increasing the amount of its demand from $5,408.86 to $6,216.55; on April 12, 1949, the Carnation Company obtained judgment against Hagan for $7,449.29, including costs.