Wolfson v. Haddan

MUSSELL, J.

Defendant, a judgment debtor, has appealed from an order directing the issuance of an execution more than five years after entry of a judgment against him in November, 1926.

Plaintiff’s motion for issuance of the writ was filed pursuant to the provisions of section 685 of the Code of Civil Procedure and was heard on affidavits and oral testimony. It is admitted that an execution was issued on the 1926 judgment by order of the court on October 17, 1944. It must be presumed that such order was made pursuant to the provisions of section 685 of the Code of Civil Procedure, and that the court considered all grounds that could have then been urged for and against the issuance of the execution. The order, then made upon the merits, constituted a final adjudication upon a mixed question of law and fact, and it had all the force of a judgment.

(Halvey

v.

Castles,

73 Cal.App.2d 667, 670, 671 [167 P.2d 492].)

Appellant contends that plaintiff assigned his judgment to one Benjamin Freed in 1928 and that a reassignment thereof to plaintiff, purportedly signed by Freed on October 13, 1944, was void and of no effect; that the court erred in not holding plaintiff to be barred and estopped by reason of his statement to defendant in 1944 to the effect that if defendant would sign a waiver of notice, then he would make no further attempt to collect the judgment. Both of these contentions are without merit. Each could have been urged against the issuance of the writ in 1944 and since no appeal was taken from that order, the judgment thereon is res judicata as to both matters.

[149]

It is also argued that plaintiff failed to exercise due diligence in locating and levying upon property owned by the debtor. The question of the exercise of due diligence prior to the issuance of the 1944 execution was involved in the decision then made by the trial court and our inquiry is limited to the question of whether there was a lack of due diligence since that ruling. The record shows that plaintiff procured a search of the records of the county recorder of Los Angeles county, where defendant resided; that the search, made in November, 1949, covered a 10-year period immediately prior thereto, and no property was found to be recorded in the name of the defendant.