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years from the date of entry, though more than 13 years bad elapsed since the entry of the judgment in question.

'Ed. Note.-For cases in point, see Cent. Dig. vol. 21, Execution, 8 161.] 6. JUDGMENT — REVIVAL CONSTRUCTION OF ORDER.

Where, on an application for the enforcement of a judgment after the expiration of five years from the date of its entry, the court ordered that the judgment be revived and enforced in the sum of $518.35, with interest from December 30, 1891, a further provision that the total amount due was $995.70, and that plaintiff should recover that amount from the defendant, should be construed merely as an adjudication of the amount of principal and interest then due, and not as requiring payment of interest on anything but the original amount. 7. EXECUTION-VARIANCE.

Where a revived judgment provided for the recovery of the original sum of $518.35, with interest from December 30, 1891, and recited the total as $995.70, an execution requiring the collection of the latter sum, "with interest on the whole thereof” from March 10, 1903, while irregular as requiring the collection of interest from that date on the interest then accrued, was not fatally defective.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 21, Execution, 8 179.] 8. APPEAL-QUESTIONS REVIEWABLE-PRESENTATION TO TRIAL COURT.

A specification in a notice of motion to withdraw an execution that there was a material variance between the judgment and the execution was insufficient to present an objection to the trial court that the execution was irregular, in that it provided for the collection of compound interest or justify a review thereof on appeal. 9. EXECUTION-LEAVE TO ISSUE-JOINT DEFENDANTS.

Where at the time an execution was granted on a judgment against two defendants one of them had died leaving no property, the other was not prejudiced by the fact that the court did not revive the judgment and authorize execution against the deceased defendant's estate.

In Bank, Appeal from Superior Court, Los Angeles County ; Waldo M. York, Judge.

Action by Annie Doebla against T. F. Phillips. From an order granting plaintiff's application for leave to issue execution for the enforcement of a judgment in her favor after the expiration of five years from the entry thereof, defendant appeals. Affirmed.

John W. Kemp, for appellant Louis Luckel, for respondent.

said application. This affidavit showed that no part of the judgment or interest thereon has ever been paid, and that such judgment is wholly unsatisfied. The court thereupon, without notice to appellant, made an order which is substantially one under section 685, Code Civ. Proc., allowing the original judgment to be enforced and carried into execution for the amount then due, as against appellant. An execution was accordingly is. sued on March 14, 1905. On April 12, 1905, appellant gave notice of his motion to vacate said order and recall said execution on varlous grounds, which will be noticed hereafter so far as may be necessary. The motion was beard upon the records and the affidavits of plaintiff and appellant. The affidavits before the superior court showed without conflict that the judgment was wholly unsatisfied, that the note upon which the judgment was based was given for money loaned to appellant, and that the other defendant, Carrie Phillips, had died without leaving any property. They were also sufficient to sustain a conclusion that plaintiff is the owner of the judgment, and that she did not know until about March 6, 1905, that either of the de fendants owned any property except a certain lot of land which was protected from execution by a homestead declaration. The affidavits failed entirely to show any prejudice resulting to appellant from the delay in enforcing the judgment, of which he can rightly complain,

Prior to the amendment of section 685, Code Civ. Proc., a judgment for the recovery of money could not be revived or enforced in any way after the expiration of five years from the time the judgment became final. Section 681, Code Civ. Proc., restricted the absolute right to an execution to the five years after entry of judgment, the time with. in which an action could be brought upon a judgment was fixed at five years by our statute of limitations (section 336, Code Civ. Proc.), the writ of scire facias had been abolished (section 802, Code Civ. Proc.), and section 685, Code Civ. Proc., authorizing the judgment to “be enforced or carried into execution after the lapse of five years from the date of its entry," was, by its terms, applicable only to cases “other than for the recovery of money." By amendment taking effect March 9, 1895 (St. 1895, p. 38, c. 33), section 685 was made to read as follows: "In all cases, the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of the court, upon motion, or by judgment for that purpose, founded upon supplemental pleadings; but nothing in this section shall be construed to rerive a judgment for the recovery of money which shall have been barred by limitation at the time of the passage of this act.” The only change made by this amendment in the original section tion was the striking out of the words "oth

ANGELLOTTI, J. These are appeals from an order directing the enforcement of a judgment as against appellant, and from an order denying a motion to recall the execution and vacate the former order.

The judgment was made December 30, 1891, and entered December 31, 1891, in favor of plaintiff and against appellant and one Carrie D. Phillips, for $518.25, then due under the terms of a promissory note given by the defendants as joint makers. Nothing was done in the matter of enforcing said judgment until March 10, 1905, when ex parte application was made to the superior court for an order allowing the enforcement thereof. The affidavit of plaintiff was filed on

er than for the recovery of money" after barred by the lapse of time, and therefore the words "In all cases,” and the addition construed the act as prospective only in operaof the proviso as to judgments for money tion, and applicable only to judgments therebarred by limitation at the time of the adop- after to be rendered. The distinction between tion of the amendment. The effect of this that statute and the one now under considerachange was to make the section applicable tion is that in the latter there is a provision to every character of case, including actions excepting one class of judgments already for the recovery of money.

rendered, viz., such judgments as are already As has been seen, the judgment here was barred, as was the one involved in Mann v. entered prior to this amendment, but it was McAtee, supra, which obviously shows that not at the time of the passage thereof barred the amendment was intended to apply to all by limitation. It is urged that the amend other judgments already rendered. In Pignaz ment should not be held to apply to any judg. v. Burnett, 119 Cal. 157, 51 Pac. 48, also cited ment for money rendered before its adoption. by appellant, the amendment shortening the There can be no question as to the power of tiine within which an appeal might be taken the Legislature to make it applicable to all from 12 to 6 months was construed as not injudgments already rendered, and not barred tended to be retrospective in effect. No time by limitation at the time of their action. The whatever was given by this amendment to apconstitutionality of statutes establishing or peal in those cases in which judgments had altering a period of limitation as to contracts

been entered for six months or more.

The then in force is beyond question. Subject al court said that, unless it was absolutely necways to the limitation that a reasonable time essary, no iutent to thus cut off the right of must be allowed for prosecuting a proceed- appeal from judgments already given should ing after the passage of an act establishing or be attributed to the Legislature, and concludshortening such a period, the power of the ed that such intent did not necessarily apLegislature is absolute in such matters. pear. Neither of these cases is applicable There is in such legislation no forbidden im here. pairment of the obligation of any contract.

It is further claimed that, conceding the As said in Terry v. Anderson, 95 U. S. 628, applicability of section 685 to money judg24 L Ed. 365, the parties to a contract "have ments rendered before the passage of the no more a vested interest in the time for the amendment, the relief thereby afforded is barcommencement of an action than they have in red in this case by the provisions of section the form of the action to be commenced, and, 343, Code Civ. Proc., which provides: "An as to the forms of action or modes of remedy, action for relief not hereinbefore provided it is well settled that the Legislature may for, must be commenced within four years change them at its discretion, provided ade after the cause of action shall have accrued." quate means of enforcing the right remain." We are satisfied that neither this nor any It was said by this court in Swamp Land Dis- other section of our general statute of limitatrict v. Glide, 112 Cal. 85, 41 Pac. 451, that tion is applicable to the procedure contem"a man has no vested right in the running plated by section 683, Code Civ. Proc. That of the statute of limitations until it has com- procedure constitutes neither an "action” nor pletely run and barred the action." See, al- a “special proceeding of a civil nature" with. so, 19 Am. & Eng. Ency. of Law (20 Ed.) pp. in the meaning of those terms as used in 167, 168, 171. We think it equally clear that such statute, nor is it in the nature of either. the amendinent to section 685 was intended It is a mere subsequent step in an action or to be applicable to all judgments not then special proceeding already commenced, which barred by limitation. In addition to the is governed entirely, so far as the time withinclusive character of the language used, we in which the same may be taken is concernhave the proviso excepting judgments for the ed, by the provisions of the statute specially recovery of money then barred by limitation, relating thereto. No liinitation of time whatThe making of this sole exception under well-ever is prescribed by such provisions; the settled rules of construction excludés any plain effect of section 685, Code Civ. Proc., other exception, and leaves the amended sec- being to empower the court to authorize the tion applicable to every judgment not includ issuance of an execution upon a judgment at ed within the exception made. In the case any time after its entry; the time within of Mann v. McAtee, 37 Cal. 11, cited by ap which the court may so act being without pellant, the question before the court was as limitation. This was the view expressed by to whether section 214 of the practice act as this court in Harrier v. Bassford, 145 Cal. enacted in 1866 (St. 1863–66, p. 704, c. 534), 529, 532, 78 Pac. 1038, where the question , which was the same as section 685, Code Civ. was not directly involved. Section 336, Code Proc., prior to the amendment, was applicable | Civ. Proc., in the general statute of limitain the case of a judgment barred by limitations, provides the period within which an tion at the time of the enactment of the sec independent action may be commenced on a tion. The court said that it could not believe | judgment, an action in which the plaintiff that the Legislature intended in reviving sec upon proving his judgment and its nonsatistion 214 in its amended form to give new faction is entitled, as a matter of right, to vitality to old judgments long since defunct, a new judgment. It has no relevancy to the and the remedy on which had already been | question under consideration here.

It may

be argued that it is inconsistent that a judg exercise of a sound discretion would require ment which is barred by limitation so far as the enforcement of the judgment. Wheeler the maintenance of a new action thereon is v. Eldred, 121 Cal. 28, 53 Pac. 431, 66 Am. St. concerned can, by leave of the court, be en Rep. 20, relied on by appellant, was a case forced by execution, but the Legislature may where there was no question as to whether BO provide, and we cannot construe the lan there had been an abuse of discretion, the sole guage of the statute before us otherwise than contention there being that the court had no as showing such provision. Courts are not discretion to refuse to grant an application authorized to make exceptions not reasonably under section 685, Code Civ. Proc., for the sustainable by the language of a statute. As execution of a decree of foreclosure as to we have seen, the only exception made by real property, where the decree had not been the statute is as to judgments barred by executed. The court held that the statute limitation at the time of the passage of this was permissive as regards the power given act." What was said in Merguire v. O'Don to the court in actions where title to real nell, 139 Cal. 6, 72 Pac. 337, 96 Am. St. Rep. property is involved, "and that the court 91, as to the applicability of section 343, Code must determine in the exercise of a sound Civ. Proc., to the remedy provided by section discretion whether the dormant judgment 708, Code Civ. Proc., the revival of a judg shall be enforced.” It may be conceded for ment in the name of the purchaser at sher the purposes of this decision that this is iff's sale thereunder where he has failed to equally true as to judgments in cases not recover possession of the property purchased involving title to real property. in consequence of irregularity in the proceed What we have said upon the ciaim as to ings, etc., was dictum. The question there abuse of discretion sufficiently disposes of presented was as to the applicability in such the claim that plaintiff was not entitled to a case of section 336, Code Civ. Proc., the the remedy afforded by section 685, Code Civ. five-year statute as to judgments, which Proc., for the collection of his judgment, by period had elapsed. The court, in holding reason of laches. the purchaser entitled to the relief sought, As contended by appellant, the lower court declared that it had no application, saying: had no power without notice to enter a new “There is nothing to indicate that the Legis judgment against him, but we do not read lature intended to control the effect or ope the order made on March 10, 1905, as doing ration of section 708 of the Code of Civil

this.

It is ordered thereby "that the said Procedure, or the remedy under it, by said judgment be revived and enforced section 336." So far, at least, as section 685, in the sum of $518.35, with interest from Code Civ. Proc., is concerned, the same is December 30th, 1891." The further proviundoubtedly true as to section 343, Code Civ. sion therein, “that the total amount now due Proc. The order for execution is not invalid is the sum of $995.70, and that plaintiff do for want of previous notice of the applica recover of and from said named defendant tion. The statute does not require any notice the said sum of $995.70,” was evidently into be given, and the failure of the statute to tended simply as an adjudication of the require notice does not render it void. This amount of principal and interest then due, is settled by at least two decisions of this and for which execution should issue, and court, in each of which the question was di cannot reasonably be construed as requiring rectly presented for determination. Bryan payment of interest on anything but the origv. Stidger, 17 Cal. 270; Ilarrier v. Bassford, inal $518.35. The amount so named was a supra. As was pointed out in Bryan v. trifle less than the amount due, as á calcuStidger, supra, if the defendant has a good lation will demonstrate. defense, or any cause to show against the The execution as issued, however, requires enforcement of process, he has a plain and the collection by the sheriff of said sum of speedy remedy in a motion to vacate the or $995.70, with interest on the whole thereof der and recall the execution.

from March 10, 1905. In this respect the exWe see no force whatever in the contention ecution was not in accord with the order or that in making the order for the issuance of judgment, requiring, as it did, the collection the execution, under the circumstances here of interest from March 10, 1905, on the inappearing, the lower court was guilty of an terest that had accrued on that date. This abuse of the discretion confided to it. Ad variance as to the amount to be collected mittedly the judgment, which was for money did not, however, render the execution void, loaned to the appellant, had never been satis but only irregular. 1 Freeman on Execution, fied in whole or in part, and no reason what § 43; Hunt v. Loucks, 38 Cal. 372, 99 Am. ever appeared why, in equity and good con Dec. 404. The only specification in the noscience, he should not be compelled to pay tice of motion touching the matter was the the same. The failure of plaintiff to earlier general specification that there is a maenforce the judgment which appellant should terial variance between the judgment and and could have at any time voluntarily paid the execution heretofore issued pursuant to was entirely without prejudice to any of his the said order of this court, and it does not legal rights, and did not render the granting appear that any more particular specificaof the order an abuse of discretion. Under tion was made on the hearing in the court such circumstances it would appear that the i below. This was not a sufficiently definite

specification to bring the matter now complained of to the attention of the lower court and the adverse party at a time when the same miglt perhaps have been remedied and plaintiff's lien saved for the proper amount due, and we are of the opinion that the appellant should not now be heard upon that matter here.

It is urged that the court had no right to direct the enforcement of the judgment against the appellant without doing the same as to his codefendant. Passing without deciding other arguments made in support of this action of the lower court, it is sufficient to point out that appellant could not be prejudiced thereby in view of the fact that the codefendant had died, leaving no property.

The orders appealed from are affirmed.

We concur: BEATTY, C. J.; SHAW, J.; MCFARLAND, J.; SLOSS, J.; HENSHAW, J.; LORIGAN, J.

(151 Cal. 497) BREDFIELD ». HANYON et al. (L. A.

1,890.) (Supreme Court of California. July 8, 1907.) MOTIONS-AFFIDAVITS IN OPPOSITION-SERVICE ON Moving PARTY-YECESSITY.

Where plaintiff obtained leave to have execution issued on a judgment, and defendant filed an affidavit op motion to set aside the order, the court properly permitted plaintiff to file a counter affidavit at the hearing without previous notice or service on defendant; her remedy being an application for time to file an affidavit in rebuttal if desired.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 35, Motions, § 42.]

In Bank. Appeal from Superior Court, Los Angeles County; G. A. Gibbs, Judge.

Action by Jennie Bredfield against J. Hannon and others. From an order granting plaintiff's application for execution on judgment in her favor, defendant Laura Hannon appeals. Affirmed.

Valentine & Newby, for appellant. F. B. Guthrie, for respondent.

been paid. At the time it was rendered and for a long time afterward, the defendants had no property, and the issuance of an execution would have been fruitless and would have entailed useless expense. The plaintiff did not discover that the defendant Laura Hannon had acquired any property until a short time before the execution was issued. The following propositions are established in the case of Doehla v. Phillips (this day decided) 91 Pac: 330: (1) The amendment of 1897 to section 68.7 of the Code of Civil Procedure, whether technically retroactive, as that word is used in section 3, Code Civ. Proc., or not, is applicable to all judgments then existing, and not barred by the statute of limitations at the time the amendment was passed. (2) Votice to the defendants of the time and place of the hearing of the motion for leave to have the execution issued was not necessary. See, also, Ilarrier v. Bassford, 145 Cal. 532, and Bryan v. Stidger, 17 Cal. 270. (3) The general statutes of limitations apply only to actions and to special proceedings of a civil nature, and they do not apply to motions of this character, under section 685), for leave to issue an execution. The right to make the motion was not barred by any of the provisions of the statute of limitations. (4) The amendment does not impair the obligation of contracts and is not unconstitutional. (5) No abuse of discretion by the court is shown, nor did the delay, under the circumstances, constitute such laches on the part of the plaintiff as to defeat her right to the execution. We will add that there was no error in permitting the plaintiff at the time of the hearing to file a counter affidavit without previous notice or service upon the defendant. If the defendant so desired, she might have asked for further time to file an affidavit in rebuttal, and, if good reason for delay was shown, doubtless the court would have given her time. She did not make any application.

These propositions are decisive of this case, and fully support the action of the court below. We refer to Doehla v. Phillips for a full discussion of the above questions.

The order is affirmed.

We concur: BEATTY, C. J.; SLOSS, J.; ANGELLOTTI, J.; MCFARLAND, J.; HENSHAW, J.; LORIGAN, J.

SHAW, J. On September 26, 1891, the plaintiff recovered judgment in the superior court against J. Hannon, Laura Hannon, and E. W. Reid, for $560. Nothing was paid on the judgment, and thereafter, on June 19, 1905, upon application of plaintiff, made without notice to the defendants, or either of them, the court made an order that an execution issue upon the judgment against the defendants, and upon the same day an execution was issued in accordance with the order. Thereafter, upon notice duly given, the defendant Laura Hannon moved the court to set aside the order for the issuance of the execution. The motion came on for hearing upon affidavits and a counter affidavit, and was denied by the court. From this last order, the defendant Laura Hannon appeals.

It is not claimed that the judgment has

(151 Cal. 517) Ex parte MOGENSON. (Cr. 1,314.) (Supreme Court of California. July 17, 1907.) HABEAS CORPUS-PROCEDURE - HEARING BEFORE JUSTICE OF SUPREME COURT.

Pen. Corle, $ 1475, as amended by St. 1907, c. 286, p. 560, provides that, if a prior writ of habeas corpus has been returned or made returnable before a district court of appeal or any justice thereof, no writ shall be issued on a second or other application, except by the Supreme Court or some justice thereof returnable before the Supreme Court or some justice thereof

Held that, if a single justice of a District Court | justices, had been consulted beforehand. The of Appeal has remanded a prisoner on habeas

evil consequences of this practice were, not corpus, a single justice of the Supreme Court may not overrule such decision on the return of

alone the interruption to more important a new writ issued by him, but the new writ, if | business of the court, but the unnecessary exissued at all. must be made returnable before the pense to counties involved in the production Supreme Court in banc.

of prisoners at the bar of the court in reIIabeas corpus on petition by J. P. Mogen sponse to writs issued upon petitions insufson before the Chief Justice of the Supremeficient on their face and often utterly frivoCourt. Writ denied.

lous in the light of the facts developed at the See 90 Pac. 1003.

hearing. A. H. Jarman, for petitioner. R. R. Bell,

In view of these inconveniences, it was City Atty., and Beasley & Fry, for respond- long ago agreed among the members of the ent.

court that, if a petition was addressed to one

justice, he should, if he issued the writ, make BEATTY, C. J. The petitioner was con

it returnable before himself and not before victed upon a charge of violating an ordi

the court, and that, if the party desired a nance of the town of Los Gatos prohibiting hearing before the court, he should be rethe sale of intoxicating liquors. Ile sued out

quired to address his petition to the court, a writ of habeas corpus from the District

so that a majority of the justices could de('ourt of Appeal for the purpose of testing

termine whether, upon the matters alleged, the validity of the ordinance, the sufficiency it was proper to issue the writ at all, and, of the complaint to state a case within the

if so, when the matter could be conveniently terms of the ordinance, and the sufficiency of

heard. Ever since this agreement was reachthe judgment to show a conviction of the of

ed I have consistently adhered to the practice fense, if any offense was charged. After a

indicated. But long as the practice has prehearing upon the return of the writ that

vailed it seems not to have been generally court, in an opinion filed May 27, 19907, over understood, and petitions are still, in many ruled all the objections to the validity of the instances, addressed to the Chief Justice ordinance and the regularity of the proceed

alone, with the expectation of having a hearings under it, and remanded the prisoner to

ing before the court. Heretofore such misthe custody of the sheriff of Santa Clara coun

takes have not involved any serious trouble ty, by whom he was detained in execution of

or inconvenience, as they could always be the judgment. 90 Pac. 1063. Subsequently a

corrected by merely changing a few words petition was presented to me, based upon the in the caption of the petition. But since the same objections to the legality of the impris

amendment to section 1475 of the Penal Code, onment that had been considered and overrul

above cited, it has become more important ed by the District Court of Appeal. Counsel, that the practice in these cases should be however, in presenting the petition to me, as

generally understood. The effect of that (hief Justice of the Supreme Court, did not

amendment, as I understand it, is to put an intend or expect that I should by myself re

end to the practice heretofore prevailing of view and overrule the decision of the Dis.

going from one judge to another of no greattrict Court of Appeal. His desire and re

er authority, with the same petition for a quest was that I should issue the writ and writ of habeas corpus, in order to secure make it returnable before the court in dinc, from one relief that has been denied by anas I have the power to do under section 4 of

other. Among its provisions is the followarticle of the Constitution, and section 1175)

ing: "In the event. however, that the prior of the Penal Code. See section as amendel writ was returned or made returnable before March 18, 19907. St. p. 560, c. 286.

a District Court of Appeal, or any justice For the future guidance of the profession

thereof, no writ can be issued upon a second in similar cases, I have deemed it important or other application except by the Supreme to state the reason why this course was not Court or some judge thereof, and such writ pursued. The authority of one justice of this

must be made returnable before said sucourt to make a writ of habeas corpus issued preme court or some judge thereof.” As I by himself returnable before the whole court construe this clause of the section, it does not was formerly exercised with great freedom mean that after the District Court of Appeal so much freedom, indeed, as to result in a has, by the unanimous decision of the three serious detriment to the more important busi- ' judges, remanded a prisoner on babeas corness of the court. It was a favorite method i pus, a single justice of this court may issue with certain practitioners to present their a new writ upon a similar petition, returnpetitions to some one justice, and often to able before himself, and, upon the hearing, several different justices in succession, ask overrule the decision of the District Court of ing for a writ returnable before the court, Appeal and discharge the prisoner. It means and, if they could get the writ allowed in only that, when a single judge of the District that way, the whole court would be compel Court of Appeal has remanded a prisoner, a lel, on the day named in the writ, to clrop all single justice of this court may overrule his other business for the purpose of hearing the decision upon the return of a new writ issued return to a petition which would never have by him, but, when the order of remand has been granted if the court, or a quorum of the

been made by the District Court of Appeal,

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