People v. McKamy

JAMES, J.

On the eleventh day of March, 1914, judgment was rendered in favor of the relator, the respondent here, and against the defendant in the sum of five hundred dollars and costs. Thereafter, on the twenty-eighth day of April, 1914, the said relator filed his affidavit with the superior court setting forth that an execution had been issued on the judgment referred to and placed in the hands of the sheriff of Kern County; that the sheriff had been unable to satisfy the judgment out of any property belonging to the defendant; and the affidavit then proceeded to state as follows: “Affiant now avers that said James McKamy has property which he unjustly refuses to apply toward the satisfaction of the judgment; that he is the owner of lots 15, 16 and the north 17 feet of lot 17 in block 198 of the city of Bakersfield, but has conveyed the said lots to Frances Keester, and refuses to apply the said property toward the satisfaction of the said judgment; that said James

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McKamy also has personal property, the exact description and nature of which is unknown to affiant, which he refuses to apply toward the satisfaction of the said judgment. ’

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Upon this affidavit an order was issued requiring the defendant to appear and answer concerning his property, and thereafter, on May 4th, he did so appear and was sworn and testified, and the proceedings were thereupon dismissed. On the thirteenth day of August of the same year, the attorney for the relator made an affidavit which was identical in substance to that theretofore made by the relator, with the exception that this affidavit last filed contained the following additional statement : “That on or about March 16,1914, said defendant withdrew a large sum of money from one of the principal banks in this county, which sum amounted to nearly $1500, and is now concealing the said money for the purpose of avoiding a levy. ’ ’ This affidavit filed by the attorney, in referring to the issuance of an execution, contained the identical words theretofore expressed in the affidavit of the relator, to wit: ‘ ‘ That on or about the 18th day of March, 1914, an execution in the sum of five hundred dollars was issued out of the superior court of the county of Kern, state of California, against the property of the said defendant, and placed in the hands of the sheriff of the county of Kern; that the sheriff has been unable to satisfy the same out of any property belonging to the defendant, ...” Whether the execution so issued had been returned to the court unsatisfied cannot be learned from either of the affidavits. If any presumption is to be applied, we may presume that the execution issued on or about the eighteenth day of March, 1914, was returned by the officer within sixty days, in accordance with the requirement of section 683 of the Code of Civil Procedure. There is no claim that any alias execution was issued subsequent thereto, and therefore, while the last affidavit filed does not disclose that fact, we may assume that there was no outstanding execution at the time the second affidavit was filed. Upon this last affidavit another order was issued requiring the defendant to appear for examination as a judgment debtor before the court. He did so appear, but entered objection to any examination being had, on the ground that the matter as to his property had been fully gone into at the previous examination and no new facte had been shown to the court sufficient to justify the issuance of the second order. The court overruled the objection and the