Pacific Gas & Electric Co. v. Elks Duck Club

NOURSE, P. J.

The defendant appeals from an order granting leave to plaintiff to enforce a money judgment.

[563]

We copy the statement of facts from appellant’s opening brief:

“On April 6, 1928, in the Superior Court of the State of California, in and for the City and County of San Francisco, a default judgment was entered in an action entitled W.

K. Slack, plaintiff

v.

Elks Duck Club,

W.

H. Banta et al., defendants.

The judgment was entered against the defendant, W. H. Banta, and in favor of the plaintiff, W. K. Slack, for the sum of $858.23. W. H. Banta died intestate on December 18, 1938, and on January 12, 1939, letters of administration upon the estate of W. H. Banta were issued to Dorothy Banta, the appellant herein. On July 6, 1939, the respondent Pacific Gas and Electric Company was substituted as plaintiff in the action in place of W. K. Slack, and on September 27, 1939, the defendant Dorothy Banta, as administratrix, was substituted as defendant in the place of the decedent, W. H. Banta.

“Dorothy Banta, the administratrix, caused notice to creditors to be duly published in the estate of W. H. Banta, deceased, and the last day to present claims against the estate was July 13,1939. On July 10,1939, Pacific Gas and Electric Company filed its claim based on the said judgment in the office of the Clerk of the Superior Court of the State of California, in and for the City and County of San Francisco, being the Court in which said estate proceedings were pending. This claim was filed without the judgment creditor obtaining permission to file the same from the Court in which the judgment was rendered or from any Court.

“On the 27th day of September, 1939, in the action in which said judgment had been obtained, an order to show cause was signed by Honorable Franklin A. Griffin, directed to the administratrix Dorothy Banta, to show cause why the Court ‘should not make its order with respect to the judgment in the above entitled action, granting leave to plaintiff to enforce and carry it into execution in every manner allowed by law, requiring the clerk to issue a writ of execution upon said judgment, permitting' plaintiff to file and prosecuté suit or suits based upon supplemental process, rejected claims, and otherwise, to file, present and prosecute claims upon said judgment, and for such other order as may be proper in the premises’. (Tr. pp. 5 and 6.) The order to show cause was heard by the Court on October 18, 1939, and on October 19,