Bartneck v. Dunkin

[60]

Opinion

TAYLOR, J.

Plaintiffs, A. J. Bartneck and his wife (hereafter Bartnecks), appeal from an order quashing their writ of execution, compelling them to execute satisfaction of a judgment, and awarding to- defendants Fred Dunkin and his wife (hereafter Dunkins), the statutory penalty of $100, pursuant to Code of Civil Procedure section 675, for the Bartnecks’ refusal to execute and acknowledge the satisfaction of judgment. The major contention on appeal is that the order must be reversed as the Bartnecks’ assignment of the prior judgment to one set of joint tortfeasors, the Millers, did not extinguish the judgment as to the other joint tortfeasors, the Dunkins.

The facts are not in dispute. On August 29, 1960, an amended judgment was entered in favor of the Bartnecks in their action No. 7389 in replevin against the Dunkins and the Millers, decreeing that the Bartnecks were entitled to recover the possession of certain items of personal property, and that if they did not receive delivery thereof within 20 days, the Bartnecks were entitled to recover $9,000 from the Dunkins and the Millers. The judgment became final. The Millers, who are not involved in this appeal, paid one-half of the judgment and the remainder was unsatisfied for several years. By an assignment dated November 10, 1965, and recorded on November 17, 1965, the Millers received an assignment of the judgment in return for the payment of an additional $3,587.

Thereafter, the Millers assigned the judgment to one Jim Austin, who obtained a writ of execution against the Dunkins

to

secure satisfaction of the unsatisfied portion of the judgment. The Dunkins, in a separate proceeding (No. 9430) moved to quash the writ of execution. After the Dunkins’ demand for satisfaction of the judgment from the Bartnecks was refused, the Dunkins commenced this proceeding pursuant to Code of Civil Procedure section 675. Both matters were tried by the court without a jury and resolved in favor of the Dunkins. This appeal is from the order dated August 4, 1966, compelling the Bartnecks to execute satisfaction of the judgment, imposing a penalty of $100 pursuant to Code of Civil Procedure section 675, and quashing the writ of execution.