Howard v. Howard

DORAN, J.

This is an appeal by the defendant husband from an order denying appellant’s motion asking that the county clerk be directed to enter a full satisfaction of an

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interlocutory judgment of divorce as respects an attorney fee of $15,690 and costs, and that the sheriff cease making further levies of execution to collect interest on said attorney fees. There is no controversy in respect to the attorney fees ordered to he paid to the wife’s attorney, and the only question here involved relates to whether interest thereon is allowable.

The interlocutory judgment, dated June 5, 1952, ordered appellant to “pay directly to plaintiff’s counsel,” the attorney fee of $15,690 and costs, within 30 days after notice of entry of judgment, together with certain items of expense connected with the divorce case. As noted in appellant’s brief, the judgment made no mention of interest. Mr. Howard appealed from portions of this judgment which was duly affirmed October 19, 1954, in 128 Cal.App.2d 188 [275 P.2d 93], and the reviewing court held that there was no abuse of discretion in awarding the $15,690 attorney fee. Thereafter, appellant refused to pay respondent’s counsel any sums other than the principal sums set forth in the judgment, whereupon respondent took out an execution and placed same in the hands of the sheriff.

In the trial court, it was appellant’s contention that no interest on the judgment was allowable for two reasons: (1), that the writ of execution issued by the clerk did not provide for interest thereon; and (2), that costs and attorney fees were mere incidents to plaintiff’s principal cause of action, and consequently do not bear interest.

It is respondent’s position that “Any judgment awarding money . . . automatically bears interest thereon at the rate of seven per cent per annum until paid, even though the judgment makes no provision for interest thereon. ’ ’ The trial court agreed with the respondent’s contention, saying: “It seems to me a simple, elementary thing where one party deprives another party of money which is rightfully theirs, pursuant to Court order, it bears seven per cent interest from the date due. That is my holding.”

The writ of execution is typewritten on the usual printed form, and specifies the amount of attorney fees and other items covered by the interlocutory judgment. Appellant makes the claim that interest was expressly excluded because “In the blank spaces appearing on the Writ, he (the Clerk) was at pains to type in a series of dashes clearly indicating that the Writ did not call for the collection of any interest whatsoever.”