Butcher v. Brouwer

EDMONDS, J.

— A judgment debtor has appealed from an order directing the issuance of a writ of execution more than five years after the entry of judgment, and presents questions for decision which require a construction of the applicable statutes.

In 1929, following default in the payment of a trade acceptance executed upon the purchase of feed for dairy cattle, judgment was entered against the appellant Brouwer and his wife. Three and one-half years later, and after some partial payments had been made upon it, Sally Williams, the assignee, procured a writ of execution and levied upon property of the appellant. Because a proceeding in bankruptcy was then pending against Brouwer, the District Court of Appeal, by writ of mandate, directed the superior court to recall the writ of execution. Shortly afterward, Brouwer’s application for a discharge in bankruptcy was denied. An alias writ of execution was then procured and levied upon his interest in certain dairy cattle. A week later the superior court quashed this writ, but the next day ordered another one issued. This was returned

nulla tona.

Seven years passed. Sally Williams then served and filed

[356]

a notice of motion for an order directing the issuance of a writ of execution upon the judgment in accordance with the provisions of section 685 of the Code of Civil Procedure. The notice of motion was accompanied by her affidavit, in which she set forth the amount claimed to be unpaid upon the judgment and the facts concerning the orders made in connection with the three writs of execution which had been previously issued. According to the affidavit, by the time the third writ of execution was issued, the appellant had disposed of his property, and despite continued- investigatian, she did not discover any property which was shown of record to be owned by Brouwer until just prior to the filing of her notice of motion.

By affidavits opposing the motion, the appellant and his wife stated that he had no property until November, 1935. Certain dairy stock, they then agreed, should be considered as belonging to the community. Since that date, Sally Williams saw the appellant make bank deposits and knew that the dairy had become a “community venture.” In reliance upon the inactivity of the assignee to prosecute the judgment and under the belief that it had been abandoned and was outlawed, the Brouwers continued, since the first of 1937, they have operated the dairy business as their community property in the appellant’s name and have purchased real and personal property jointly from commingled community and separate funds. From 1937, this property has been assessed to the appellant. And if the execution should be issued, they asserted, their business will become worthless, and because of outstanding encumbrances against its assets, the judgment creditor will receive nothing, but many persons will lose their employment.