Opinion
8-17-1956
Winston N. SALSBERY and Helen S. Salsbery, Plaintiffs and Appellants, v. Tex RITTER, Kenneth D. Holland, Custom Craft Sheet Metal Products, a California corporation, Eugene W. Biscailuz, Sheriff of Los Angeles County, George J. Barbour, Clerk of the Municipal Court of Los Angeles Judicial District, Jango Nishemine, George A. Cutright, Stanley Sevilla, John Doe I, John Doe II, John Doe III, John Doe IV, John Doe V and John Doe VI, and Municipal Court of the Los Angeles Judicial District, Defendants, Eugene W. Biscailuz, Sheriff of Los Angeles County, George J. Barbour, Clerk of the Municipal Court of Los Angeles Judicial District, Municipal Court of the Los Angeles Judicial District, Tex Ritter, Kenneth D. Holland, Stanley Sevilla, George A. Cutright, Jango Nishemine and Custom Craft Sheet Metal Products, a California corporation, Respondents.* Civ. 21549 and 21550.
Edward H. Blixt, Los Angeles, for appellants. Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondents.
Winston N. SALSBERY and Helen S. Salsbery, Plaintiffs and Appellants,
v.
Tex RITTER, Kenneth D. Holland, Custom Craft Sheet Metal Products, a California corporation, Eugene W. Biscailuz, Sheriff of Los Angeles County, George J. Barbour, Clerk of the Municipal Court of Los Angeles Judicial District, Jango Nishemine, George A. Cutright, Stanley Sevilla, John Doe I, John Doe II, John Doe III, John Doe IV, John Doe V and John Doe VI, and Municipal Court of the Los Angeles Judicial District, Defendants,
Eugene W. Biscailuz, Sheriff of Los Angeles County, George J. Barbour, Clerk of the Municipal Court of Los Angeles Judicial District, Municipal Court of the Los Angeles Judicial District, Tex Ritter, Kenneth D. Holland, Stanley Sevilla, George A. Cutright, Jango Nishemine and Custom Craft Sheet Metal Products, a California corporation, Respondents.*
Aug. 17, 1956.
Hearing Granted Oct. 9, 1956.
Edward H. Blixt, Los Angeles, for appellants.
Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondents.
VALLEE, Justice.
Appeals by plaintiffs from two judgments of dismissal entered on the sustaining of general demurrers to the complaint without leave to amend. The first judgment sustained without leave to amend the general demurrer of defendants Eugene W. Biscailuz, Sheriff of Los Angeles County, George J. Barbour, clerk of the Municipal Court of Los Angeles Judicial District, and the Municipal Court of the Los Angeles Judicial District. The second judgment sustained without leave to amend the general demurrer of the remaining named defendants.
The complaint alleges:
Defendant Custom Craft Sheet Metal Products obtained a judgment against plaintiffs in the municipal court in action No. 148830 for $150.09 and costs. In the action an original summons was returned, an alias summons was issued and returned, and a second alias summons was issued before the first alias summons was returned and without an affidavit being filed showing a lost or destroyed summons. A writ of execution issued and was levied on the interests of plaintiffs in certain realty. On May 4, 1954 the sheriff sold plaintiffs' interests to defendants Cutright, Nishemine, and Sevilla for $51.70, and issued and recorded a certificate of sale which creates a cloud on plaintiffs' title.
On June 14, 1954 defendants Ritter and Holland, his attorney, obtained a judgment against plaintiffs for $1,500 which was recorded June 25, 1954. On April 21, 1955 plaintiffs homesteaded the realty. On April 28, 1955 defendants Ritter and Holland redeemed the property by paying $51.70 plus interest and costs, a total of about $55, to the sheriff. Ritter and Holland did not record any notice of redemption or any notice purported to be required by section 703 of the Code of Civil Procedure.
On April 29, 1955 plaintiffs deposited $61.80 with the sheriff and served a notice of redemption on him and recorded a copy of the notice. The sheriff, Ritter and Holland have demanded that plaintiffs deposit with the sheriff a sum of money equal to $61.80 and the full amount of the judgment in favor of Ritter, plus interest and costs, before the sheriff issue a certificate of redemption to plaintiffs.
On June 1, 1955 plaintiffs filed in the federal court two petitions in bankruptcy discharging all of the aforementioned judgments and indebtedness.
Plaintiffs prayed that: (1) the judgment in the municipal court action, No. 148830, be declared of no force and effect; (2) the sale of the realty by the sheriff on May 4, 1954 be declared void; (3) it be declared defendants have no right, title, or interest in the property; (4) defendant sheriff be ordered to issue a certificate of redemption to plaintiffs; and (5) the court quiet title to the realty in favor of plaintiffs against all defendants. As noted, defendants' demurrers to the complaint were sustained without leave. Plaintiffs appeal from the judgment which followed.
Plaintiffs raise the following issues: (1) the second alias summons was void and its issuance was a jurisdictional defect; (2) defendants Ritter and Holland are not lien holders who are entitled to redeem; and (3) plaintiffs do not have to pay the judgment lien of Ritter and Holland in order to redeem the property.
All of the points urged by plaintiffs here were made by them in Ritter v. Salsbery, 142 Cal.App.2d Supp. 847, 298 P.2d 166, a proceeding in unlawful detainer brought by defendant Ritter against plaintiffs for possession of the property in controversy. In a careful, comprehensive and, we think, correct opinion the Appellate Department of the Superior Court of Los Angeles County, speaking through Judge Patrosso, all of such points are considered and decided adversely to plaintiffs' contentions. Of the soundness of that decision we think there can be no doubt. Nothing said in plaintiffs' briefs or in argument suggests different conclusions. No useful purpose would be accomplished in repeating what is said in that opinion. We are in entire accord with the views there expressed, and adopt that opinion as the decision of this court.
Plaintiffs do not raise in their briefs the effect of their homesteading the property prior to the time defendants Ritter and Holland redeemed, nor do they therein urge the effect of the allegation that they filed two petitions in bankruptcy. These matters are therefore deemed waived. De Freitas v. De Freitas, 133 Cal.App.2d 769, 285 P.2d 111; Shumaker v. Foster, 129 Cal.App.2d 216, 276 P.2d 876.
The judgments are affirmed.
SHINN, P. J., and WOOD, J., concur. --------------- * Opinion vacated 306 P.2d 897.