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District Court of Appeal, Second District, Division 2, California.

KNAPP et al. v. ROSE et al.

Civ. 15848.

Decided: November 20, 1947

Alexander L. Oster and A. J. Weiss, both of Los Angeles, for appellants. S. V. O. Prichard, Oliver O. Clark and Robert A. Smith, all of Los Angeles, for respondents.

This action was brought to annul a writ of enforcement issued by the clerk of the superior court of Los Angeles county (which was the forum for all actions herein mentioned) and all acts done pursuant thereto in action 334097, herein referred to as cause 33. Defendants appeal from the judgment awarding plaintiffs the relief demanded.

On May 6, 1929, Lorn Betty recovered judgment against Ellen B. Crowder and her son E. W. Knapp for $3,000 and costs in the sum of $74.05. That action was numbered 260222 and will be referred to as cause 26. In action 33 the court found that E. W. Knapp and June Knapp were husband and wife and that Ellen Crowder was the mother of E. W. Knapp; that after the entry of judgment in cause 26 numerous executions were issued therein and delivered to the sheriff but that all of them were returned unsatisfied; that proceedings supplemental to execution resulted in no collection on account of the judgment in cause 26, but that during the period of the efforts of Betty to collect on his judgment Mrs. Crowder without a valuable consideration conveyed to June Knapp all of the real property owned by herself and son for the purpose of defeating Betty's collection of his judgment. The court thereupon decided that the property so transferred should be reconveyed to Mrs. Crowder and her son and enjoined them pending the issuance of an alias execution from selling or encumbering it. The judgment entered thereon annulled the conveyance to June Knapp insofar as it affected Betty as a judgment creditor and decreed (1) that Betty has a lien upon the property described in such conveyance for the full amount of his judgment and costs in action 26; (2) that an alias execution be issued in cause 26 directed to the sheriff of Los Angeles county empowering and commanding him to sell such portion of the real estate described in the fraudulent deed as will be sufficient to satisfy the judgment in cause 26; (3) that plaintiff Betty recover from Mrs. Crowder and her son the sum of $3,000 and costs in the sum of $431.50 with legal interest from the date of judgment in cause 26; (4) that plaintiff (Betty) may proceed upon his execution heretofore issued or upon an alias execution upon his judgment in cause 26; and (5) that the defendants deliver to the sheriff the property described in the deed to be sold and the proceeds applied to the satisfaction of the judgment in cause 26 and interest and costs incurred in cause 33 in the sum of $74.55.

The judgment in cause 33 having made no attempt to declare the judgment in cause 26 to be satisfied but having prescribed that it should be processed by an alias execution in cause 26, it is clear that the judgment in cause 33 was intended to be merely supplemental to the statutory method for enforcing the judgment in cause 26. Despite the character of the last mentioned judgment, on October 21, 1941, appellant Rose caused it to be duly assigned to himself. Several writs of execution having been theretofore returned unsatisfied, Rose caused an ‘alias Writ of Enforcement’ to be issued on April 6, 1942, in cause 33 and to be delivered to the marshal of the Los Angeles municipal court. Pursuant to Rose's instructions the marshal without making a levy advertised and sold the property of respondents as in the case of foreclosure sales.

The present action having been brought to vacate the writ of enforcement, upon a trial the court below adjudged (1) that the judgment in cause 33 limits the processes of the court to execution theretofore issued in cause 26 or to an alias execution thereafter issued in the latter cause; (2) that the alias writ of enforcement issued April 6, 1942, in cause 33 was void from and after its issuance; (3) that the certificate of sale issued by the marshal May 13, 1942, and his deed issued May 22, 1943, were and are void and expunged from the public records; (4) that none of the defendants has any right to or estate in the realty described in the marshal's certificate and deed.

While that part of the judgment in cause 33 which ordered the issuance of an ‘alias execution’ whereby to sell the realty conveyed by the fraudulent deed was superfluous (see Code Civ.Proc., secs. 683, 688), the fatal error which was corrected by the present judgment was the issuance by the clerk and the execution by the marshal of a writ of enforcement in cause 33. The decree in cause 33 did not, and indeed legally it could not, provide for the issuance and execution of process for the enforcement of the judgment in that proceeding. Its purpose and its office were merely to effectuate the collection of the judgment in cause 26. The language of the pleadings as well as of the decree in cause 33 are so plain that any construction other than that above announced would be to disregard the terms of such decree as well as pertinent statutes.

In the absence from a decree of specific directions to issue a writ of enforcement the clerk is without authority to do so. The judgment in cause 26 when filed in the office of the county recorder is a lien upon the real property of the judgment debtors and it is enforced by levy and sale under a writ of execution. Wellborn v. Wellborn, 55 Cal.App.2d 516, 521, 131 P.2d 48. The decree in cause 33 pointed the way to be followed in enforcing the money judgment in cause 26, and by establishing for Betty a lien upon the Crowder-Knapp property nothing was left for the imagination to devise as the course of the judgment creditor in cause 26. Just as a writ of execution cannot be used for the sale of specific property subject to a lien specified in the judgment, so a writ of enforcement such as that under which the marshal made sale of the Crowder-Knapp property was not authorized for enforcing payment of the former money judgment in cause 26, notwithstanding that in the subsequent equity action, cause 33, a lien was established on specific property of the debtor in the money judgment. Montgomery v. Meyerstein, 195 Cal. 37, 43, 231 P. 730. Had the property of Crowder and Knapp been sold and the proceeds paid to Rose, the judgment in cause 26 would remain unsatisfied since there is no indication that Rose has any interest in the money judgment. It follows that the writ of enforcement was void, and therefore the sale made by the marshal and all of his acts done pursuant thereto are likewise void. Luckenbach v. Krempel, 188 Cal. 175, 177, 204 P. 591.

Appellants contend that the instant action (cause 49) was not authorized for the purpose of setting aside a sale under execution and that a motion in cause 33 was the appropriate procedure. It is true that as a general rule the proper procedure is by motion to vacate the sale in the action under which irregularities are alleged to have occurred. But the present situation presents an exception to that rule and such exception conferred upon the equity jurisdiction of the court the power to do the needful. Mitchell v. Alpha Hardware & Supply Company, 7 Cal.App.2d 52, 56, 45 P.2d 442. While June Knapp had been a defendant in cause 33, she had satisifed the judgment against her for costs some three years prior to Rose's acquisition of the judgment. Having no interest in that action she was in no position to make a motion to vacate the sale and to nullify the marshal's certificate and deed. Difani v. Riverside County Oil Company, 201 Cal. 210, 214, 256 P. 210. Also see Lavaysse v. Superior Court, 63 Cal.App.2d 223, 225, 146 P.2d 686. If where a void judgment is made a stranger to the record cannot attack it by motion but only by a suit in equity. (Bennett v. Wilson, 122 Cal. 509, 514, 55 P. 390, 68 Am.St.Rep. 61), then where a sale of the property of a stranger to the action has been illegally made his remedy is by a suit in equity. (Ibid.)

The order of December 31, 1941, is not res judicata of the present action. On August 13, 1940, there respondents filed their notice of motion to quash and recall the order of sald and decree of foreclosure in cause 33. Several grounds for the motion were alleged including the grounds that no order of foreclosure and decree of sale had been made against Mrs. Crowder and the Knapps and that ‘the foreclosure does not describe the property.’ Because the motion was denied on December 31, 1941, appellants now contend that the order of denial is res judicata of the present action, citing Denio v. City of Huntington Beach, 74 Cal.App.2d 424, 168 P.2d 785. The cited cases holds nothing more than the familiar doctrine of res judicata. Appellants by such contention again ignore the fact that on the date of the denial of such motion June Knapp was not a party to cause 33, having satisfied the judgment against her. The inclusion of her name as a mover of the motion was evidently an inadvertence and was not sufficient to reinstate her as a party. No attempt was made by the defendants in the motion to have the order applied to Mrs. Knapp. In her absence and by reason thereof the court's denial of the motion was foreordained. A judgment or an order cannot affect a stranger to the action; only parties and their privies are bound. Holt Manufacturing Company v. Collins, 154 Cal. 265, 271, 97 P. 516; Trowbridge v. Love, 58 Cal.App.2d 746, 749, 137 P.2d 890.

The finding is that the judgment in cause 33 limits the processes of the court to be thereafter issued and used in the enforcement of the rights of the plaintiffs as determined in cause 33 to the execution theretofore issued or to an alias execution to be thereafter issued upon the judgment in cause 26. Such finding is neither irrational nor arbitrary but is supported by the evidence. The conclusion that cause 33 does not authorize the issuance of a writ of enforcement out of that cause but limits the processes to be used in the enforcement of plaintiffs' rights to the issuance of an alias execution in cause 22 is a logical sequitur of such finding.

In cause 33 the judgment provided that plaintiff have a judgment lien in cause 26 upon the property described in the fraudulent conveyance of Mrs. Crowder for the full amount of his judgment and costs plus the costs accrued in cause 33. The declaration reviving the judgment lien which had expired by virtue of the lapse of five years was justified by the decision that the judgment debtors had fraudulently placed their property beyond the reach of the lienor as well as by the showing that the latter had been diligent in his efforts to collect the judgment in cause 26. Without recording a new abstract of the judgment in the latter cause or the judgment in cause 33 the judgment creditor pursued the course of having the marshal sell the respondents' property under the writ of enforcement issued out of cause 33. There is no authority for such course as has been demonstrated.

Judgment affirmed.

MOORE, Presiding Justice.

WILSON, J., concurs.