McCracken v. Harris , 54 Cal. 81 ( 1879 )

By the Court:

This is an appeal from an order restraining the defendants, Harris (who is the Sheriff of Santa Clara County) and Reed, (who is a judgment creditor of the plaintiff) from making sale of certain real estate situate in said County of Santa Clara, the property of the plaintiff, upon an execution in the hands of the said Sheriff. The restraining order was made upon hearing of an order previously made against the defendants, to show cause why they should not be restrained from making the sale of the premises upon the execution.

It appeared,' at the hearing of the order to show cause, that a writ of attachment issued by the District Court of Santa Clara County, at the suit of the defendant Reed, was duly levied upon the premises in October, 1878; that on the 4th day of November following, the attached premises became the homestead of the plaintiff, by means of a declaration of homestead on that day duly recorded by him; that some twenty-one days thereafter—to wit, on the 25th day of November—a judgment was duly rendered and recorded by said District Court in the said action of Reed against McCracken, the plaintiff here.

1st. The principal question presented is, as to whether a judgment obtained after a declaration of homestead can be enforced against the homestead, when there had been an attachment levied upon the premises before the filing of the declaration of homestead; the judgment not appearing to have been founded upon a debt secured by a mortgage, or mechanic’s, laborer’s, or vendor’s lien? We are of opinion that it cannot.

The Civil Code, §§ 1240 and 1241, distinctly provides that (except in cases of mechanics’, laborers’, or vendors’ liens, or mortgages duly made) a homestead cannot be subjected to a forced sale upon a judgment, unless the judgment imparting a lien on the premises was obtained before the homestead declaration was filed. The plaintiff was therefore entitled to an order restraining the threatened execution sale.

2nd. But the restraining order was made without requiring the plaintiff to file the usual undertaking. This was error. The statute (Code Civ. Proc. § 529) provides that the Court, (except where the people are party plaintiff) on granting an injunction, shall require a written undertaking on the part of the plaintiff to the effect that he will pay the party enjoined such damages as he may sustain by reason of the injunction, and this provision is applicable, whether the restraining order be made upon an ex parte application, or upon an order to show cause previously made.

■ For this error the order must be reversed, and the cause remanded, with leave to the plaintiff to renew the application.

So ordered. Remittitur forthwith.