Dorland v. Smith , 93 Cal. 120 ( 1892 )

Vanclief, C.

This action was commenced May 13, 1879, in the late district court of the twenty-third judicial district for the city and county of San Francisco, to enforce the lien of a street assessment on a lot on Mission Street, then the property of the defendant. A decree enforcing the lien by sale of the lot was entered January 11, 1881.

On July 11, 1883, and before the issuing of an execution upon this decree, the defendant conveyed the lot to Romain C. De Boom.

On February 28, 1887, the superior court, on motion of plaintiff’s attorney, without notice to De Boom or defendant, made an order directing that execution issue on the decree.

An execution (order of sale) was accordingly issued on March 1, 1887, and on March 26, 1887, the sheriff sold the lot at public auction to plaintiff’s attorney, J. M. Wood, for the sum of $834.43, which was applied to the satisfaction of the assessment and costs.

On April 25, 1890, pursuant to previous notice served on J. M. Wood, Esq., De Boom moved the court to vacate and set aside the order of February 28, 1887, directing that execution issue, and also to set aside the sheriff’s sale of the lot to J. M. Wood, on the grounds that the order was unauthorized and illegal for the reason that more than five years had elapsed between the date of the entry of the judgment and the date of the order, and that the execution and the sheriff’s sale under it were unauthorized and void for the same reason.

This motion was granted. The order of February 28, 1887, was vacated, and the sheriff’s sale to J. M. Wood was set aside.

From this order J. M. Wood alone brings this appeal upon the judgment roll, including a bill of exceptions.

The motion was heard upon the judgment roll, the order of sale and sheriff’s return thereon, the papers on file in the case, and the affidavits of De Boom and J. M. Wood.

The order of February 28, 1887, does not appear in the record, and there is nothing tending to show the ground upon which it was made, except the affidavits of the parties, which state that it was made on the ground that plaintiff had been restrained from enforcing the decree from September 2, 1882, until January 6, 1886. But as to the fact of such restraint, the affidavits are contradictory, that of De Boom denying that plaintiff was restrained at all for any period of time, while that, of appellant simply states that plaintiff was so restrained “ by order of court,” without specifying any particular order.

The affidavit of De Boom states that for nine years last past he resided in Napa County, and had no notice of the order of February 28, 1887, nor of the sheriff’s sale to J. M. Wood, until within the last three weeks, and this is not denied.

The court had no power to make the order of February 28, 1887, directing the issuance of execution after the expiration of five years from the entry of the judgment, even though the plaintiff had been restrained by order of court from executing the judgment, as claimed by appellant. Therefore, the order, the execution, and the sheriff’s sale under the execution were void. (Dorland v. Hanson, 81 Cal. 203; 15 Am. St. Rep. 44; Buell v. Buell, 92 Cal. 393; Stout v. Macy, 22 Cal. 647; Bowers v. Crary, 30 Cal. 622.) It follows that the court properly vacated the order of February 28,1887, and set aside the unauthorized sale by the sheriff, upon motion of De Boom, the purchaser from the defendant of the property attempted to be sold. (People v. Mullan, 65 Cal. 396.)

It is contended for appellant, however, that as it does not appear that defendant has complained of the order of February 28,1887, it must be presumed that he waived the right to complain of it, and that De Boom is bound by defendant’s waiver.

In the first place, it appears by the uncontradicted affidavit of Be Boom that defendant had no notice of the application for that order; and in the second place, it is not perceived that defendant could have waived the right of his vendee to object to a sale of his property under a void execution.

It is also claimed for appellant that the order appealed from is erroneous because no notice of the application for it was served upon the plaintiff.

A written notice of the application addressed to plaintiff and her attorney in the action (J. M. Wood) was duly served upon the latter, who claims, however, that his relation of attorney for the plaintiff in the action was severed by the sale of the property to himself and the payment of the purchase-money to the plaintiff, after which notice to him was not notice to the plaintiff. Perhaps this objection might have been taken by the plaintiff had she appealed from the order; but I think it is not available to the appellant, who had notice, and who appeared and resisted the motion. So far as the merits or demerits of the motion were concerned, the appellant was at liberty to oppose it on any ground which could have been urged by the plaintiff. The only ground upon which the motion rested was, that the order directing execution to issue was made more than five years after the entry of the judgment. Appellant was at liberty to show, if he could, that such was not the fact. But he did not dispute it, and the record which he has brought here shows that it was indisputable. It therefore appears that he was not injured by want of notice to plaintiff of the motion to vacate the order of February 28, 1887.

I think the order should be affirmed.

Fitzgerald, 0., and Belcher, 0., concurred.

The Court.

For the reasons given in the foregoing opinion, the order is affirmed.