From Casetext: Smarter Legal Research

Pickens v. Coffey

Court of Appeal of California, Third District
Dec 28, 1933
136 Cal.App. 105 (Cal. Ct. App. 1933)

Opinion

Docket No. 5029.

December 28, 1933.

MOTION to dismiss appeals from orders of the Appellate Department of the Superior Court of Los Angeles County in a proceeding to subject a homestead to execution. Marshall F. McComb, Douglas L. Edmonds and Lester W. Roth, Judges. Appeals dismissed.

The facts are stated in the opinion of the court.

S.J. Coffey, in pro. per., and Catherine A. McKenna for Appellant.

Roy A. Linn and Roy C. Kaiser for Respondent.


[1] In this proceeding a judgment creditor sought successfully to subject the homestead of the judgment debtor to execution under the provisions of sections 1245 et seq. of the Civil Code. The trial court adjudged the homestead exemption to be the sum of $1,000 and ordered a sale of the real property by the marshal of the Municipal Court of the City of Los Angeles and decreed that out of the proceeds of the sale there be paid to the judgment debtor the amount of the homestead exemption of $1,000, the expenses of the sale and the cost of the proceeding be then deducted, the amount of the judgment be next paid to the judgment creditor and the balance paid to the judgment debtor.

Respondent herein, the judgment creditor in the proceeding, moves to dismiss the appeals taken from several orders of the trial court. The homestead property was sold by the marshal in pursuance to the court's decree and the sale brought the sum of $1521.40. This sum is just sufficient to discharge the homestead exemption of $1,000, the expenses of sale and the cost of the proceeding and the claim of the judgment creditor. Appellant has accepted from the marshal the said sum of $1,000.

The acceptance from the marshal of this sum constituted an election to abide by the judgment and the doctrine of estoppel by election is applicable. The case of Turner v. Markham, 152 Cal. 246 [ 92 P. 485], is directly in point and determinative upon the motion.

The motion is granted and the appeals dismissed.

Plummer, J., and Pullen, P.J., concurred.


Summaries of

Pickens v. Coffey

Court of Appeal of California, Third District
Dec 28, 1933
136 Cal.App. 105 (Cal. Ct. App. 1933)
Case details for

Pickens v. Coffey

Case Details

Full title:WESLEY S. PICKENS, Respondent, v. S.J. COFFEY, Appellant

Court:Court of Appeal of California, Third District

Date published: Dec 28, 1933

Citations

136 Cal.App. 105 (Cal. Ct. App. 1933)
27 P.2d 914

Citing Cases

Lee v. Brown

Plaintiff's motion has the support of a decision of this court, Turner v. Markham (1907) 152 Cal. 246 [ 92 P.…

Kaiser v. Mansfield

[4] Where either of two remedies is available to enforce the same right, a judgment on the merits in an…