Dampier v. Dampier

FOX, Acting P. J.

Defendant appeals from an order directing the issuance of a writ of execution.

Plaintiff secured an interlocutory decree of divorce which provided: “The defendant is ordered to make the monthly payments on the note at the Security-First National Bank, 14th and Wilshire Branch, Santa Monica, California, amounting to Fifty Dollars ($50.00) per month, and to pay the same until the indebtedness to said bank is completely liquidated.”

In due course a final judgment was entered from which no appeal was taken.

Plaintiff made a motion for issuance of an execution based upon the above order. She supported her motion by her own affidavit and that of B. B. Bashore, an employee of the Security-First National Bank. Defendant filed an affidavit in which he stated,

inter aUa,

that he. was not indebted to plaintiff. The affidavits on behalf of plaintiff disclosed that while plaintiff and defendant were living together as husband and wife they executed a promissory note to the bank for $740.70 covering a loan of money to them; that the note was secured by certain chattel mortgages; that after plaintiff secured the interlocutory decree, she alone executed a renewal note for the balance remaining unpaid in consideration of an extension of time, with the same chattel mortgage security ; that thereafter the bank sold the property covered by two of the chattel mortgages, applied the net amount realized therefrom on the indebtedness, and determined that the security represented by the third chattel mortgage was

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valueless; that after such credits plaintiff entered into a stipulated judgment with the bank for $513.66 and agreed to make monthly payments thereon until fully paid; and that plaintiff had never received any payment from defendant on account of the provision quoted above from the interlocutory decree. Execution was ordered issued “in the sum of $515.66.”

Section 681, Code of Civil Procedure, provides that “The party in whose favor judgment is given may . . . have a writ or order issued for the execution or enforcement of the judgment.” Belying on this statute defendant contends that the writ was improperly issued on the theory that the judgment is not in plaintiff’s favor. In making this contention defendant overlooks the obvious fact that the only judgment rendered in this case was in favor of plaintiff—not in favor of anyone else. The provision in the judgment directing defendant to make the payments on the note to the bank was for plaintiff’s benefit because she was obligated to pay such indebtedness. It may therefore properly be said that the judgment was in her favor.