Odenthal v. Lee

DORAN, J. This is the third action involving the same general subject matter. The first was an action instituted by the plaintiff Odenthal against Harry W. Lee, in superior court, No. 568622, in which, on December 17, 1951, Odenthal had judgment against Lee in the amount of $4,152.42. Nora Lee, wife of Harry W. Lee, was not a party to this action.

Thereafter, according to respondent’s brief, “On February 4, 1952, the first writ of execution was returned partially satisfied after a bid by plaintiff of $1,000.00 on an undivided one-half interest in property owned by Harry W. Lee. The net satisfaction was $943.75. On April 28, 1952, after the examination of Harry W. Lee on supplementary proceedings, the property with which this litigation is concerned was sold (to plaintiff Odenthal, the only bidder, for $750.00) and on June 9, 1953, the second writ was returned. On January 23, 1953, and on February 20, 1953, writs were returned wholly unsatisfied. On April 20, 1953, a writ was returned partially satisfied; on October 20, 1953, a writ was returned wholly unsatisfied, and, finally on November 17, 1953, an acknowledgment of satisfaction was filed. While Harry W. Lee redeemed the parcel of property first sold, no attempt was made to redeem the second parcel, the one in dispute, until after the redemption period expired.”

After sale by the sheriff of “Lot 15, Tract No. 6084, as per map recorded in Book 101, Pages 52 to 57,” the property involved herein, and on October 30, 1952, Nora Lee filed an action to quiet title to said property, and for damages for slander of title, Superior Court No. 605689, claiming ownership and alleging that Harry W. Lee “at no time whatsoever held any right, title, interest or estate in and to said real property and appurtenances, or any part thereof.” Harry W. Lee was not a party to this action. At the trial of this cause, judgment was again in favor of Odenthal, and the trial court found that although standing in the name of Nora Lee, “said property was purchased by the plaintiff and her husband with community funds . . . and liable to the payment of the debts of said Harry W. Lee.” On November 13, 1953, Harry W. Lee filed a motion in the first action, No. 568622, to set aside the sale and for redemption, which motion was denied, time for redemption having already expired.

The present action is brought by Odenthal against both Mr. and Mrs. Lee, to quiet title to the property and for declaratory relief, and pleads the two former actions and the judgments and findings therein. The complaint likewise [178]