Teel v. Justice's Court

ARCHBALD, J.,

pro tern

.

Appeal from a judgment denying appellant’s petition for a peremptory writ of

mandamus

to compel respondent Justice’s Court and the justice of the peace thereof to issue a writ of execution to enforce a judgment of said court more than five years after the entry thereof.

Appellant contends that section 685 of the Code of Civil Procedure, permitting a judgment to be enforced after the lapse of five years, applies to all judgments, including those of a justice’s court.

The case of

White

v.

Clark,

8 Cal. 512, decided in 1857, arose under the Practice Act, section 214 of which, so far as material here, provided that “after a lapse of five years from the entry of judgment, an execution shall be issued only by leave of court, on motion”. In that case an execution was issued in a justice’s court more than five years after its entry. The Supreme Court held that section 214 referred “only to executions issued by the clerk of a court of record having a seal, and not to executions issued by justices of the peace”, and, the execution therein having been issued without authority, that “the sheriff was not justified in enforcing it”. Then, as now with our Code of Civil Procedure, a separate chapter of the Practice Act dealt with the subject of judgments and executions in the justices’ courts. In 1866 such section was amended to read: “In all eases other than for the recovery of money, the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of the court, upon motion, ...” (Stats. 1865-66, p. 704.) The amendment limited the application of the section to judgments other than those for the recovery of money.

[111]

In 1872 such section became section 685 of our Code of Civil Procedure, and was amended in 1895, so far as material here, by striking out the words “other than for the recovery of money”, making it applicable to all judgments, as before the first amendment.