Peers v. Stoll

STURTEVANT, J.

In an action brought to foreclose a mortgage the defendants defaulted, a decree in favor of the plaintiffs was entered, a sale was had, and a deficiency judgment for $3,149.50 was entered April 5, 1918. No other proceedings were had until August 4, 1937, when the above-named plaintiffs applied to the court for an order - directing execution to issue. (Code Civ. Proc., sec. 685.) They served and filed a written notice of their motion and at the same time served and filed an affidavit by G. R. Soule, the assignee of the judgment, in support of their motion. Thereafter the defendants served and filed an affidavit by A. G. Stoll, one of the defendants, in opposition to the motion. A hearing was had on the motion and the trial court caused an order to be entered granting said motion. From that order the defendants have appealed.

At this time the defendants contend the trial court abused its discretion in granting said motion. In the first place they contend the notice of motion was fatally defective because it did not state the grounds on which the motion would be made. (Code Civ. Proc., sec. 1010.) The record does not disclose that any objection to the form of the notice was made in the trial court. Such an objection may not be made in a court of review for the first time. Nothing to the contrary appearing in the record this court will assume that the defendants waived any objection, if they had any, to the form of the notice served upon them.

(Hecq

v.

Conner,

203 Cal. 504, 506 [265 Pac. 180].) In the next place the defendants contend that the affidavit served on them was insufficient in not “ . . . setting forth the reasons for fail

[513]

ure to proceed in compliance with the provisions of section 681 of this code”. (Code Civ. Proc., sec. 685.) That is, they complain because the plaintiffs did not set forth any excuse for not taking out execution within five years after the entry of the judgment. The omission of the plaintiffs of which the defendants complain was not fatal. The effect of such omission is stated in the next sentence in section 685, “The failure to set forth such reasons as shall, in the discretion of the court, be sufficient, shall be ground for the denial of the motion.” But the motion was not denied—it was granted—therefore the defendants may not complain. The third contention made under this point is that under the facts alleged in the affidavit of A. G. Stoll, and in view of the lapse of over nineteen years after the entry of judgment, the revivor of the judgment was an abuse of discretion. Before proceeding it should be kept in mind that properly speaking the record does not present a question of “revivor of the judgment”. (34 C. J. 658; 15 Cal. Jur. 256, 257.) As addressed to the motion made by the plaintiffs the mere matter of delay is not necessarily material. In