Peterson v. Lampton

WHITE, J.

Petitioner seeks by writ of mandate to compel the issuance by respondent Clerk of the Superior Court of the State of California, in and for the County of Los Angeles, of a writ of execution in an action now pending in the aforesaid court. By way of return to the alternative writ, respondent has filed a general demurrer challenging the sufficiency of the grounds stated in the petition to authorize or sustain the issuance of the writ prayed for.

Epitomized, the facts are that on or about January 5, 1926, one Joseph Farnsworth recovered judgment in the sum of $3,983.56 against J. W.- Breedlove upon a cause of action based upon a foreign judgment theretofore recovered for the payment of a note executed by said Breedlove for the price of certain personal property purchased by him.

From the petition it appears that for a period of more than five years after the rendition of such judgment, plaintiff in that action, Joseph Farnsworth, endeavored to collect the judgment, but his efforts in that direction were futile, owing to his inability to locate property or assets of the judgment debtor. On or about December 11, 1940, plaintiff Farnsworth assigned said judgment to the petitioner herein, M„ F. Peterson, for the purposes of collection, and on January 27, 1941, by order of the superior court, petitioner herein was substituted plaintiff for and in the place of Farnsworth, and ever since that time has been such plaintiff and entitled to all of the rights and remedies accrued and accruing in said action.

On or about January 30, 1941, petitioner herein filed his motion for issuance of execution after five years under section 685 of the Code of Civil Procedure, and thereafter, on April

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14, 1941, said superior court made its order granting sueli motion and directing its clerk, respondent herein, to issue execution on the judgment entered in such action, and ordered that issuance of such execution be stayed for a period of ten days from and after the 14th day of April, 1941. On the 23rd day of April, 1941, J. W. Breedlove, defendant in said action, filed with the clerk of said superior court a notice of appeal from the order directing the issuance of execution, and also filed a request to the clerk to prepare a transcript on appeal.