Shapiro v. Cahill

California Court of Appeal Sep 5, 1963 No. Civ. 27425Published

Before: Kingsley

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Holding. The trial court abused its discretion by denying a motion for execution of a judgment after five years where the appellant demonstrated due diligence and the respondent failed to offer any evidence or opposition to the contrary.

Issues

Whether an attorney may enforce a judgment for attorney fees in his own name under section 137.5 of the Civil Code.
Whether the trial court abused its discretion in denying a motion for execution of a judgment after five years under section 685 of the Code of Civil Procedure.

Disposition. reversed

Quotations verified verbatim against the opinion

“once an order has been made, pursuant to section 137.5 of the Civil Code, directing payment to be made to counsel, the latter may enforce the order in his own name by seeking the levy of execution.”

“As a matter of law, the appellant has shown due diligence.”

“where, as here, no such showing was attempted there was nothing for the trial court to weigh against the showing of diligence on the part of appellant and a peremptory denial of the motion was, as a matter of law, an abuse of discretion.”

KINGSLEY, J.

This is an appeal from an order denying a motion to issue an execution on a judgment pursuant to section 685 of the Code of Civil Procedure. Appeal is the proper procedure to review such order.

(Kellow

Lane

(1951) 102 Cal.App.2d 821 [228 P.2d 872];

Atkinson

(1939) 35 Cal.App.2d 705 [96 P.2d 824];

McClelland

Shaw

(1937) 23 Cal.App.2d 107 [72 P.2d 225].)

The only statement of facts before us is that of appellant,

[774]

since respondent has not filed a brief with this court, after a request to do so pursuant to California Rules of Court, rule 17(b).

Therefore, pursuant to the provisions of such rule, we accept appellant’s statement of facts as correctly stating the events hereinafter set forth.

Appellant as attorney of record for Mrs. Cahill filed a complaint for divorce against respondent on December 26, 1944. Respondent not having appeared, his default was entered and an interlocutory judgment of divorce was granted to plaintiff on February 7, 1945, and entered on February 8, 1945. The interlocutory judgment provides, so far as is pertinent herein, as follows: “Defendant Edward John Cahill is further ordered to pay to Leo Shapiro, attorney for plaintiff, the sum of $500.00 for attorney fees, said sum payable forthwith. ’ ’ A final judgment of divorce was entered on February 13, 1946.

The attorney fees not having been paid as of December 3, 1962, appellant served on respondent, and on December 4, 1962, filed, a written notice of motion, supported by the declaration of appellant, for an order directing issuance of execution for payment of said sum of $500. After numerous continuances at the request of respondent’s attorney, the motion was submitted to the court for decision on December 26, 1962, with leave allowed respondent to file opposition to the motion if he should be so advised. No opposition, either by way of affidavit, declaration, or points and authorities, was filed by respondent. On March 6, 1963, the said motion previously submitted on December 26, 1962, was denied by the court.

Shapiro v. Cahill

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KINGSLEY, J.

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