Beccuti v. Colombo Baking Co.

EDMONDS, J.

— The statute considered in

Butcher

v.

Brouwer, ante,

p. 354 [132 P.2d 205], must again be construed in determining the validity of an order directing that a judgment, upon which no execution was issued during a period of 15 years after its entry, be now enforced.

Giacomo Lercari and two other persons were sued in 1923 in an action brought on a promissory note. Judgment for

[361]

$1,032.74 was entered against them in 1927. Since 1940, the respondents, Henrietta Beccnti and Rosa Canelli, have been the substituted plaintiffs in that action and the successors in interest of the judgment creditor.

Lercari died in 1940. During the following year, the respondents procured an order directing the executors of Lercari’s estate to show cause why the judgment should not be enforced. No writ of execution had theretofore been issued upon it. By an affidavit presented in support of the motion, counsel for the respondent Canelli averred that the judgment is wholly unsatisfied and unpaid and stated the reasons for the plaintiff’s failure to obtain a writ.

Since the entry of the judgment, he said, due and frequent efforts to collect it have met with no success. A full and complete investigation was made by and on behalf of the plaintiff concerning its collectibility, including the solvency and whereabouts of the various defendants. Inquiries were made at the last known addresses of the defendants and public records were consulted. From the reports received, the plaintiff and her attorneys concluded that it was uncollectible and no writ of execution was procured. “At all times from the date of said judgment until the death of defendant Lercari as hereinafter alleged, said parties were of the opinion, based upon all information they could procure, that to obtain executions or attempt to levy the same, would have been idle and unavailing.” But as the “affiant is now informed and believes,” although for the period of at least five years after the judgment was rendered Lercari had no assets, later he “acquired certain assets which he concealed in order to prevent the same from being subjected to the payment of said judgment.”