Smith v. Smith

MOORE, P. J.

This is an application for a writ of supersedeas pending appeal from an order denying defendant’s motion to recall and quash a writ of execution. The proceeding arose out of a judgment for support and maintenance entered in favor of plaintiff in a divorce action in which the interlocutory decree was entered May 7,1926. The final decree, including all orders for support, was entered May 17, 1927. The order for the issuance of the writ of execution was entered August 9, 1940.

At the time of entering the interlocutory decree the parties had two minor children, aged seven and thirteen years. The order for support in the sum of $150 per month was for the benefit of the children as well as of plaintiff.

Defendant having defaulted in the payments under the judgment prior to the 12th day of July, 1940, plaintiff filed her affidavit and a motion for the issuance of a writ of execution under section 685 of the Code of Civil Procedure, which reads as follows: “In all cases the judgment may be enforced or carried into execution after the lapse

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of five years from the date of its entry, by leave of the court, upon motion,

and after due notice to the judgment debtor accompanied by an affidavit or affidavits setting forth the reasons for failure to proceed in compliance ivith the provisions of section 681 of this code.

The failure to set forth such reasons as shall, in the discretion of the court, be sufficient, shall be ground for the denial of the motion.

“Judgment in all cases may also be enforced or carried into execution after the lapse of five years from the date of its entry, by judgment for that purpose founded upon supplemental proceedings; but nothing in this section shall be construed to revive a judgment for the recovery of money which shall have been barred by limitation at the time of the passage of this act”.

On the 18th day of July, 1940, the court issued the writ

ex parte.

On the second day of August defendant filed and served his notice of motion to recall and quash the execution on the grounds (a) that no personal service of the notice of motion for its issuance was had upon the defendant; (b) that prior to the motion no amount had been fixed as the sum to be paid under the original order; (c) the order authorizing the issuance of the execution made no reference to the change in the status of the parties or to the order of court entered March 17, 1939, reducing the payments to one dollar per month until defendant should become employed and $32 per month thereafter; (d) the original order was made for the benefit of the plaintiff and the two children.