Brown v. Newby

DORAN, J.

Defendants appeal from an order of the superior court made and entered on February 3, 1938, granting the motion of plaintiff, respondent herein, for the issuance of a writ of execution after a lapse of more than five years from the date of the entry of judgment, in an action upon a promissory note. Plaintiff, an employee of the real party in interest, was an assignee for the purpose of collection of the note.

The complaint which was filed on September 15, 1930, alleged in substance that the defendants made, executed and delivered their promissory note in the amount of $11,250 in favor of the Citizens National Trust and Savings Bank of Los Angeles, due sixty days from and after July 1, 1930. The complaint further alleged the assignment and transfer of said note without recourse by the bank to the plaintiff, and the demand and nonpayment of the amount allegedly due.

After a trial on the issues presented by the pleadings, judgment was entered on May 27, 1932, in favor of plaintiff and against the defendants, for $11,250 principal, together with interest, attorneys’ fees and costs. Defendants appealed from the judgment, and on June 29, 1935, the judgment of the trial court was affirmed on condition that within twenty-five days after the filing of the decision plaintiff waive all of said judgment in excess of $5,000 against each defendant. This the plaintiff did, on July 17, 1935, and the judgment

[617]

was then affirmed. (See

Brown

v.

Newby,

8 Cal. App. (2d) 203 [47 Pac. (2d) 1076].)

After the entry of the judgment of the trial court, to wit, on or about June 28, 1933, the judgment debtors were duly examined concerning their property, and were thereafter excused by the referee.

On November 9, 1937, the defendants again appeared before the referee for examination concerning their property, pursuant to an order of the court. When it appeared that counsel who had initiated the proceedings were not attorneys of record in the case, the matter was allowed to go off calendar.