Tolle v. Doak

EDMONDS, J.,

pro

tem.

The procedure required to be taken by a judgment creditor, more than five years aiter the judgment is entered, to secure the allowance of .the judgment against the estate of the judgment debtor, who £ied in the meantime, is the sole question for consideration in this ease.

In 1923 H. A. Tolle secured a judgment against William C. Doak. In the same year execution was issued upon this judgment and returned

nulla bona.

In 1933 the defendant died testate and Edward H. Page was appointed and qualified as the executor of his will. In the following year the plaintiff served and filed upon the attorney of record for the executor his notice of motion “for an order under 'section 685, C. C. P., for the issuance of execution after the , period

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of five years and/or for an order enabling the plaintiff to file his claim against the Estate of William C. Doak, deceased, . . . and for such other and further relief as to the Court may seem just. ’ ’

The motion came on regularly for hearing, and was granted. Thereafter the executor, by his attorney, served upon plaintiff’s counsel a notice of motion for an order vacating and setting aside the previous order of the court. Upon the hearing of this motion it was denied and the executor has appealed from each order.

The position of the appellant is that no order can be made under the provisions of section 685 of the Code of Civil Procedure after the death of the judgment debtor without the substitution of the executor as the defendant in the action in which the judgment was entered, and, further, that notice to 'the attorney for the executor does not comply with the requirements of that section without such substitution.

It has been the law of this state since 1861 that the superior court has power to order the issuance of execution on a judgment which became final more than five years before the application therefor. Prior to 1933 such an application could be made