Greeley v. Suey Sing Benevolent Assn.

SPENCE, J.

Defendant appeals from an order of the trial court directing the issuance of execution.

The judgment was obtained by John J. Greeley in 1918. John J. Greeley died in 1923 and in 1937 the motion for the issuance of execution was made by his administratrix under the provisions of section 685 of the Code of Civil Procedure. The affidavit in support of said motion set forth that the judgment in the sum of• $2,360.74 had never been paid and that it remained wholly unsatisfied; that no execution had been issued upon said judgment for the reason that no property of the defendants, or either of them, was discovered upon, which execution could be levied and that a levy of execution would have been a futile act; that John J. Greeley made many and frequent efforts during his lifetime to collect said judgment and made due and diligent efforts to locate property of the judgment debtors; that said John J. Greeley searched the records in the office of the county recorder and county assessor in the city and county of San Francisco, but after due and diligent search, was unable to discover any property belonging to said judgment debtors during his lifetime; that since the death of said John J. Greeley, the affiant had continued the efforts to locate property of the judgment debtors, but was unable to locate any property until May, 1937. The affiant further alleged on information and belief that defendant Suey Sing Benevolent Association had certain property which could be subjected to the payment of the judgment but that said defendant had concealed its assets in order to prevent the satisfaction of said judgment.

The defendant Suey Sing Benevolent Association filed several affidavits in opposition to said motion. In said affidavits it was alleged that “so far as known to affiant”, said defend

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ant had never concealed any property or taken any action for the purpose of evading said judgment; that throughout a period of a number of years or for “many years last past”, or “so far as known to affiant”, said defendant had “carried on its affairs and now continues to carry on its affairs in a customary and usual manner and without any devices, frauds, methods or schemes directed toward the end of defeating payment of said judgment”; and that affiants knew nothing of said judgment until September, 1937. There was no allegation in any of said affidavits showing that any payment had been made upon said judgment. Nor was there any allegation in any of said affidavits showing the nature of the business of said defendant or showing that said defendant ever had any property at any time out of which said judgment could have been satisfied.