Passow v. Bell

NOURSE, P. J.

This matter is before us on an appeal from an order denying plaintiff’s motion to issue execution

[361]

under section 685 of the Code of Civil Procedure, and on a motion to dismiss the appeal.

In February, 1928, plaintiff had judgment against defendant in the sum of $1,000. Repeated efforts to make collection under the judgment failed. The defendant was a police officer of the city and county of San Francisco, and successfully resisted levy under the provisions of section 710 of the Code of Civil Procedure. In April, 1928, upon motion of the defendant, the trial court ordered defendant’s salary released from the effects of the judgment upon the ground that his entire income was necessary for the support of himself and wife. This was done on defendant’s showing that he had no income other than his salary of $200 a month, a pension from the federal government of $25 a month, and a small equity in his home which he was purchasing under an instalment contract. In November, 1936, defendant’s wife died. In his petition for letters of administration the defendant averred that he and deceased owned community real property of the value of $5,000, community personal property, an automobile valued at $900, and cash in savings accounts of $1600. During the period mentioned defendant had no visible income other than the $225 a month which he received in salary and pension, and, during the five years following the entry of the judgment, defendant’s counsel informed plaintiff that there was no use in attempting to enforce the judgment.

All these facts appear in the affidavit of plaintiff's counsel filed in support of his motion for leave to issue execution. They are not controverted in any material respect. There was no showing by the defendant that the delay in seeking execution had caused him any prejudice or harm. To the contrary, the evidence is that it was of material and substantial benefit to him. The whole case before the trial court was that the defendant, relying upon his official position, had, either through trickery or false swearing, or both, deliberately deceived the plaintiff as to his financial condition and thus escaped the penalties of the judgment.

On such a case the legal discretion lodged with the trial judge demands the issuance of the writ prayed for. This principle is clearly pronounced in