Mongerson v. Williams

California Court of Appeal May 8, 1944 No. Civ. 3137Published

Before: Barnard

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Holding. The court held that the trial court abused its discretion in denying the plaintiff's motion for execution, as the record demonstrated the plaintiff exercised due diligence in attempting to collect the judgment and no equitable grounds existed to deny relief.

Issues

Whether the trial court erred in denying a motion for execution after five years based on a lack of diligence by the judgment creditor.
Whether the judgment creditor met the burden of showing due diligence in attempting to satisfy the judgment within the statutory period.

Disposition. reversed

Quotations verified verbatim against the opinion

“it was an abuse of discretion for the trial court to deny the motion and to refuse to issue the execution.”

“it is now incumbent upon a judgment creditor to show that he has exercised due diligence during the five years following the entry of judgment in attempting to locate property upon which execution may be levied”

BARNARD, P. J.

This is an appeal from an order denying a motion for the issuance of an execution after the lapse of five years from the entry of the judgment.

A judgment for $2,383.57 in favor of plaintiff and against defendant was entered on February 2, 1932. On appeal that judgment was increased to $3,683.57

(Mongerson

Williams,

136 Cal.App. 569 [29 P.2d 303]). The remittitur was issued on April 5, 1934. A transcript of the judgment was recorded on March 5, 1932, and another transcript of the amended judgment was recorded following the receipt of the remittitur. A small amount was paid on the judgment which is not material here.

Before the judgment became final, and on March 7, 1934, the defendant transferred all his property, including several parcels of real estate, to his two sisters by a conveyance which was recorded. On the same day that the remittitur was filed the defendant filed a notice of motion for a partial satisfaction of the judgment, claiming that the plaintiff had received $1,350 from certain insurance. That motion was taken under submission by Judge Owen on April 28, 1934, but was never decided by him. While it was still under submission, and on August 10, 1938, the plaintiff gave notice of a motion for an order for the issuance of an execution. On September 6, 1938, the defendant gave a second notice of motion for a partial satisfaction of the judgment, based upon the same claim as the first motion. Judge Owen having died, these last mentioned two motions were heard by Judge Bradshaw on September 19, 1938, and an order was entered denying the defendant’s motion for a partial satisfaction of the judgment and granting the plaintiff’s motion for the issuance of an execution. An execution was issued and later returned unsatisfied.

On July 10, 1943, supplemental proceedings were initiated. On August 30, 1943, plaintiff filed notice of another motion for an order directing the issuance of an execution. Affidavits were filed by both parties and after a hearing the court entered an order denying the motion, the court stating that the plaintiff had not used diligence in collecting the judgment

[281]

Mongerson v. Williams

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BARNARD, P. J.

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