Jamgochian v. Manaselian

California Court of Appeal Apr 19, 1973 No. Civ. No. 40034Published

Before: Dunn

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Holding. The court held that a levy of execution on a debtor's interest in an estate creates a valid lien that persists until distribution, regardless of whether the underlying judgment exceeds ten years in age or the distribution decree is delayed.

Issues

Whether a judgment creditor's lien on an heir's interest in an estate becomes void if the decree of distribution is not entered within ten years of the judgment.
Whether a levy of execution on an estate interest requires physical expropriation to be perfected.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Appropriate service of a writ of execution (“attachment,” fn. 2) on the personal representative of a decedent creates a hen on the distributive interest of the debtor heir, legatee or devisee.”

“This indicates a legislative intent that the lien, once effected, continues to the time of distribution, irrespective of the fact that the judgment upon which it rests may have been in existence for more than 10 years.”

Opinion

DUNN, J. According to the clerk’s transcript, which is the only record before us, Rose Badivian died February 2, 1967, leaving her estate to her two sons, Arthur L. Manaselian and Norman Badivian. Each son became entitled to receive $7,362.43 from the estate, which was probated in the Los Angeles County Superior Court. This appeal involves the trial court’s determination of priorities between judgment creditors levying on the legacy of Arthur Manaselian, only.

The court found that John and Christine Johnson obtained a $5,000 judgment against Arthur Manaselian and his then wife, Florence Manaselian, on December 24, 1958.1 On February 29, 1968, the Johnsons [739]caused a writ of execution to issue on their judgment which, with accruals, then amounted to $8,221.08. A copy of the writ of execution2 and a notice of attachment were filed with the Clerk of the Los Angeles County Superior Court on March 7, 1968, and both were served, in compliance with Code of Civil Procedure section 561, on Arthur Manaselian, as administrator C.T.A. of his mother’s estate, on March 19, 1968.

The court further found that on June 7, 1961, Florence (Manaselian) Jamgochian obtained a judgment against her former husband, Arthur Manaselian, in a divorce proceeding. On December 11, 1968, she caused a writ of execution to issue on this judgment which, with accruals, then amounted to $5,894.35. A copy of this writ of execution and a notice of attachment were served on Arthur Manaselian, as administrator C.T.A. of his mother’s estate, on December 20, 1968, and were filed with the court clerk on December 23, 1968.

The trial court concluded that the Johnson’s levy was prior in time, was valid, and entitled them to Arthur Manaselian’s distributive share of his mother’s estate; this share was ordered to be delivered to the officer making the levy, pursuant to Code of Civil Procedure section 561.

The record makes it clear that the writ on the Johnson’s judgment was issued and served before 10 years had passed and, therefore, before their judgment became stale under Code of Civil Procedure section 681.3 Since it was issued and served before appellant Jamgochian took steps to levy execution on her judgment, its priority was established. (Civ. Code, § 2897; 5 Witkin, Cal. Procedure (2d ed. 1971) Enforcement of Judgment, §§ 74, 75, pp. 3447-3448 and cases cited.)

Jamgochian v. Manaselian

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