Bank of America National Trust & Savings Ass'n v. Katz

KNIGHT, J.

This is an appeal from an order made pursuant to the provisions of section 685 of the Code of Civil Procedure, granting leave to enforce a money judgment against the estate of the deceased judgment debtor by the presentation of a claim against his estate and by bringing an action thereon if the claim is rejected. That portion of section 685 upon which the order was based reads:

“In all cases

the 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 ...” (Italics ours.)

Appellant makes no complaint that the trial court abused its discretion in granting the order. The sole contention made is that the provisions of section 685 may not be invoked for the enforcement of a money judgment against the estate of a judgment debtor. The substance of the theory upon which appellant bases his contention is that in the event of the death of the judgment debtor, the provisions of section 686 of said code operate as a limitation upon the exercise of the discretionary powers granted by section 685; that under section 686 judgments may be enforced only by way of execution and only in the particular class of cases specified therein, namely, when the judgment is for the recovery of real or personal property, or the enforcement of a lien thereon; that therefore, subsequent to the death of the judgment debtor, the application of the provisions of said section 685 must be restricted to that class of judgments.

[140]

In five comparatively recent cases, however, orders of the kind here assailed, made under the authority of section 685, granting leave to enforce money judgments against the estates of deceased judgment debtors, have been upheld. Those cases are:

Saunders

v.

Simms,

183 Cal. 167 [190 Pac. 806] ;

Faias

v.

Superior Court,

133 Cal. App. 525 [24 Pac. (2d) 567];