Levene v. Levene

California Court of Appeal Feb 8, 1952 No. Civ. 14803Published

Before: Nourse

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Holding. The court held that a trial court's decision to deny a motion for execution of a judgment after five years, based on a lack of diligence by the creditor in discovering leviable property, will not be disturbed absent a clear abuse of discretion.

Issues

Whether the trial court abused its discretion in denying a motion for execution of a judgment for installments due more than five years prior to the motion.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the failure of the judgment creditor to exercise diligence to discover leviable property of the debtor is sufficient to defeat his motion for a writ of execution”

“when the trial court has exercised its discretion the reviewing court may not disturb the judgment except upon a showing of a clear and positive abuse of such discretion.”

NOURSE, P. J.

Appellant and respondent were divorced in March, 1932. Appellant was awarded. custody of their two minor children for whose support respondent was ordered to pay $50 a month. Both parties have since remarried and have continuously resided in San Francisco. During the first five years following the judgment respondent made no payments and, coneededly, was unable to do so. In 1939 respondent opened a jewelry business in San Francisco in which he prospered and from the proceeds of which he and his second wife acquired considerable property, both real and personal, and maintained at least two bank accounts. Until December, 1949, appellant did nothing to collect on the judgment or to discover property subject to execution except to consult several friends of hers who were lawyers. She took no court action. As a result of the proceedings initiated in 1949 appellant had an order that execution issue covering the instalments accruing during the five-year period preceding the order and denied as to the prior instalments. Respondent complied with this order paying appellant the full sum awarded with interest and costs.

The appeal is taken from the portion of the order denying execution covering instalments falling due more than five years prior to the motion.

The first ground stated is that section 685, Code of Civil Procedure, is precise in its terms. The second point is: “The rationale decidendi of the decisions of our appellate courts permitting a creditor to enforce a judgment after the elapse of five years from the entry thereof is that the creditor must show that he did previously comply with section 681 C.C.P., within the time therein limited, or, that he show the futility of the issuance of execution during said period.” The third point is that in considering such an application after the five-year period the court should do equity. The fourth point is a criticism of

Maguire

Corbett,

101 Cal.App.2d 314 [225 P.2d 606], as being out of line with

Butcher

Brouwer,

21 Cal.2d

[157]

Levene v. Levene

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NOURSE, P. J.

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