Castle v. Castle

WILSON, J.

An interlocutory judgment of divorce was entered in favor of respondent on July 1, 1936, whereby appellant was ordered to pay respondent the sum of $25 per month for the support of respondent and the minor child of

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the parties. Final judgment of divorce was entered on September 4, 1941. On September 17, 1942, respondent filed an affidavit setting forth that nothing had been paid to her on account of the judgment and that $1,875 was due, owing, and unpaid thereon, being the sum of $25 per month from July 1, 1936, to September 1, 1942. Pursuant to an order of the court therefor, made on September 17, 1942, without notice to appellant, the clerk issued execution for said amount and the sheriff levied upon and sold real property of appellant in partial satisfaction of the judgment. The sale was held on December 7, 1942. On March 10, 1945, appellant served and filed a notice of motion to set aside the order of September 17, 1942, directing the issuance of execution, to recall and quash the execution, to vacate the levy, and to vacate and set aside the sale of appellant’s property, on the ground that the court was without jurisdiction to make or issue said order of September 17, 1942. Appellant’s motion was denied and he appeals from the order denying his motion.

Seventy-five monthly payments were unpaid at the date of the order for the issuance of the execution, sixty of which had accrued within five years prior to the date of the order. For these amounts execution could have been issued without notice to appellant. (Code Civ. Proc., § 681.) The fifteen payments that had accrued more than five years previously to the issuance of the order were barred by the statute of limitations. (Code Civ. Proc., § 336.) That portion of the judgment is unenforceable except that execution therefor may issue “by leave of the court, upon motion, and after due notice to the judgment debtor accompanied by an affidavit or affidavits setting forth the reasons for failure to proceed in compliance with the provisions of section 681 of this code.’’ (Code Civ. Proc., § 685, as amended by Stats. 1933, eh. 971, p. 2499.) Prior to this amendment the court was authorized to make an order for the issuance of an execution upon ex parte application without notice to the judgment debtor, but since the effective date of the amendment notice to the judgment debtor is a condition precedent to the making of such an order; and an order made without notice is void and is subject to collateral as well as to direct attack.