YORK, J. Plaintiff appeals from an order denying her motion for the enforcement of a money judgment after a lapse of five years from the date of its entry, and the issuance of execution thereon, pursuant to section 685 of [63]the Code of Civil Procedure, against defendant Keiser, one of the judgment debtors in the above-entitled action, it appearing from the record that defendant Goodin had left the jurisdiction of the court.
The judgment for $1809.75 and costs was entered on March 9, 1911, and on May 11, 1911, a writ of execution issued which was returned by the sheriff wholly unsatisfied. On June 29, 1914, an alias writ of execution issued, which was also returned unsatisfied, but defendants at that time were examined under proceedings supplemental to the execution, which failed to reveal any property subject to levy thereunder. The validity and amount of the judgment are not questioned, nor the fact that it remains unsatisfied.
Appellant on September 30, 1935, moved the court for an order to enforce and carry into execution the aforesaid judgment, having given due notice thereof to the respondent Keiser, pursuant to the provisions of section 685 of the Code of Civil Procedure, as amended in 1933. (Stats. 1933, p. 2499.) This motion was supported by memorandum of points and authorities and an affidavit of the attorney for appellant which briefly summarized the history of the case, and attached to which was a letter written to him by respondent’s former wife, upon which he apparently based his affidavit in support of the motion, although nowhere in his affidavit does he attest to the fact that he believed the facts set forth in said letter were true. In opposition to the motion, respondent filed his affidavit stating that he had been a resident of Los Angeles contiguously from the date of the entry of the judgment to the time of making the affidavit in question; that he had received inheritances in the years 1918 and 1931 which could have been disclosed to appellant by a supplemental proceeding; that up until the year 1929 he was an able-bodied man in good health and capable of following a gainful occupation; that in the year 1929 respondent became afflicted with diabetes from which he has been a constant sufferer; that in May, 1934, and in September, 1935, he suffered strokes and as a result thereof, respondent at the time he made the affidavit here involved was not capable of following any gainful occupation, but was then entirely dependent for his living upon such few assets as he then possessed.
[64]Upon hearing, the motion was denied. Appellant now contends that the order denying such motion should be reversed because, “(1) if the trial court had any discretion in passing upon the motion that discretion was abused; (2) under the 1933 amendment to section 685 of the Code of Civil Procedure plaintiff and appellant was entitled to an order for the issuance of execution upon showing compliance with section 681, C. C. P., as a matter of right.”
Whether a dormant judgment shall be enforced is a matter within the sound discretion of the trial court. (11 Cal. Jur., sec. 12; Faias v. Superior Court, 133 Cal. App. 525, 530 [24 Pac. (2d) 567]; Blumer v. Madden, 128 Cal. App. 22, 26 [16 Pac. (2d) 319]; Palace Hotel Co. v. Crist, 6 Cal. App. (2d) 690 [45 Pac. (2d) 415].) In the absence of an abuse of such discretion, this court cannot interfere with the judgment of the trial court.
It was said in the ease of Tolle v. Doak, 12 Cal. App. (2d) 195, at page 197 [55 Pac. (2d) 542]: “It has been the law of this state since 1861 that the superior court has power to order the issuance of execution on a judgment which became final more than five years before the application therefor. Prior to 1933 such application could be made ex parte. In that year (Stats. 1933, p. 2499) section 685 of the Code of Civil Procedure was amended to add to the provision that a 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’, the requirement ‘and after due notice to the judgment debtor’ ... as the statute is silent as to the manner of giving notice, personal service is required.” The notice required by such amendment was complied with in the case before us.
In the case of Shields v. Superior Court, 138 Cal. App. 151 [31 Pac. (2d) 1045], decided in 1934, the petitioner sought a writ of mandate to compel issuance of a writ of execution on a decree of divorce awarding alimony and support for children, contending that she was entitled thereto as a matter of right. Respondents claim that the provisions for support were not enforceable by execution in the same manner as an ordinary money judgment under sections 681 and 685 of the Code of Civil Procedure, but. that said provisions were enforceable only in the discretion of the trial [65]court under section 140 of the Civil Code. It was there said, at page 153: “Under said section 685, a writ of execution may be had upon a judgment only ‘by leave of court’ after the lapse of five years ‘from the date of its entry’. The decree here was entered in 1924 and the motion for the issuance of execution was made in 1934, approximately ten years after the entry of the decree. Under either view, petitioner was not entitled to a writ of execution as a matter of right at the time the motion was made, but only in the discretion of the trial court. Assuming that sections 681 and 685 of the Code of Civil Procedure are the sections providing for the manner of enforcement as contended by petitioner, she was not entitled thereunder to the issuance of execution as a matter of right after the lapse of five years from the date of the entry of the decree. ’ ’
It therefore appears that appellant was not entitled as a matter of right to an order for the issuance of a writ of execution upon showing compliance with section 681 of the Code of Civil Procedure, especially in view of the fact that over twenty-one years had elapsed since she had complied with said section.
A perusal of the record before us compels the conclusion that there was no abuse of discretion on the part of the trial court in denying the motion to issue execution.
Since we are upholding the action of the trial court, and because the question has not been raised by either party to this appeal, we are not taking into consideration or deciding whether that portion of section 685, supra, relating to the revivor of a judgment for the recovery of money, “which shall have been barred by limitation at the time of the passage of this act’’, reenacted by the amendment to said section in 1933, would preclude the court from making the order appealed from.
The order is affirmed.
Doran, J., concurred.