Widener v. Hartnett

YORK, P. J.

—Respondent has moved to dismiss the appeal herein and affirm the judgment or order on the ground that the appeal therefrom is frivolous and the question presented so unsubstantial as not to require further argument.

It appears from the record that Burthold Widener recovered a judgment against appellant on February 17, 1932, in a personal injury action, but was unable to collect the same before his death, which occurred on February 22, 1937, although two executions had theretofore issued, to wit: one on April 9, 1932, and the other on October 22, 1936. Letters of administration in his estate were duly granted on September 13, 1,937, to H. Park Arnold, respondent herein, and on February 4, 1938, said administrator moved the court for an order substituting himself as party plaintiff in place of de

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cedent (under section 385, Code of Civil Procedure), and also for issuance of execution after a lapse of five years from the date of entry of the judgment (under section 685, Code of Civil Procedure), which motion was granted. The appeal herein is from such order granting said motion, appellant contending (1) that a new party plaintiff may not be substituted after the five-year statute has run; and (2) that he had no proper notice of the motion for issuance of execution for the reason that service was made upon attorney Dan M. Critchley, while Max A. Sturges was at all times his attorney of record.

Respondent in support of his motion to dismiss and affirm contends that a mere inspection of the record will disprove appellant’s contentions; that it is elementary that a judgment may be enforced by the administrator in the same manner as the deceased might have enforced it, and that service upon attorney Critchley was proper for the reason that in January, 1937, appellant was brought into court on supplementary proceedings in connection with the judgment of February 17, 1932, at which time he was represented by said attorney Critchley.

Section 685 of the Code of Civil Procedure provides: “In all cases the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of the court, upon motion, and after due notice to the judgment debtor accompanied by an affidavit or affidavits setting forth the reasons for failure to proceed in compliance with the provisions of section 681 of this code. 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 . . . ’’