United States Capital Corp. v. Nickelberry

Opinion

HASTINGS, J.

This is an appeal by defendant Albert Nickelberry from a judgment reviving a money judgment in favor of plaintiff United States Capital Corporation which it had obtained approximately 10 years earlier. Defendant’s sole defense was based on laches on the part of plaintiff in failing to satisfy or at least attempt to satisfy the original judgment within the 10-year period. The court rejected this argument and defendant appeals.

On June 10, 1969, plaintiff obtained a money judgment against defendant for $13,472.30. By means of an attachment $71.45 was collected on July 10, 1970. No other sums have been recovered. On June 20, 1979, a second writ of execution was obtained by plaintiff, however, according to plaintiff the execution was abandoned because the Sheriff of Alameda County was unable to execute within the 10-year period from the date of the original judgment.

[866]

Code of Civil Procedure sections 335 and 337.5,

1

read together, permit an action enforcing a judgment to be commenced at any time within 10 years after the judgment has been entered. Once an action is begun within the statutory period, the creditor’s right to recover remains alive, even though the 10-year period may subsequently expire.

(Alonso Inv. Corp.

v.

Doff

(1976) 17 Cal.3d 539, 545 [131 Cal.Rptr. 411, 551 P.2d 1243].)

On June 7, 1979, three days before the ten-year period would expire, plaintiff filed its action to continue the judgment seeking a sum of $22,890.05. This sum included the original judgment, plus accrued interest. Defendant answered and pleaded an affirmative defense of laches that stated: “Plaintiff has delayed an unreasonable period of time in bringing this action, to wit: ten (10) years, which delay has prejudiced the defendant in that during that ten year period plaintiff made no concerted effort to collect on the original judgment when defendant had discoverable assets and chose merely to let the interest accumulate so that the amount now due is almost double the amount of the original judgment.”