Betty v. Superior Court

EDMONDS, J.

In this proceeding an alternative writ of mandate was granted upon a showing that the superior court had refused to direct its clerk to issue an execution upon a judgment. The question for decision concerns the time within which a judgment, which has been revived under the provisions of section 708 of the Code of Civil Procedure, “has the same force and effect” as the original one.

The judgment in controversy was rendered September 20, 1932, in an action brought by Lorn H. Betty. It provided that the plaintiff should have a lien upon certain property and directed that execution issue accordingly. Thereafter, the property was sold by the sheriff, and, upon his return, it was fully satisfied of record. On August 24, 1937, the superior court granted plaintiff’s motion to revive the judg

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ment upon the ground that the sheriff’s sale was void. The plaintiff then assigned it to M. Potter who, upon the refusal of the county clerk to issue execution, on January 6, 1941, moved the superior court for an order directing him to do so. This motion was denied. Later Potter assigned the judgment to petitioner.

It is the petitioner’s contention that the order of August 24, 1937, revived the judgment for a period of five years from that date. The respondents assert that he is not entitled to a writ of mandate because he has a remedy by appeal; that he has not exhausted his remedies because he did not apply to the superior court for an order directing a writ of execution to issue after his assignor’s motion was denied; and that, more than five years having elapsed since the judgment was entered, he may obtain execution only upon motion made in accordance with the requirements of section 685 of the Code of Civil Procedure.

Section 708 of the Code of Civil Procedure provides that, under stated circumstances, the superior court must, upon motion, revive a judgment, “and the judgment so revived has the same force and effect as would an original judgment of the date of the revival, and no more.” The rights of litigants under this section have been considered and passed upon a number of times (see

Heine Piano Co.

v.