Atkinson v. Adkins

CONREY, P. J.

Judgment on the pleadings was rendered against the defendant. The complaint, duly verified, which was filed on the twenty-fourth day of August, 1923, declared upon a judgment rendered in favor of the plaintiff and against the defendant Adkins (and the defendant Delaney, who was not served and did not appear in this action), on the twenty-ninth day of August, 1918. In his answer appellant admitted that he has not paid the judgment, but “as to whether or not no part of said judgment has ever been paid and/or that said judgment now remains wholly or at all unpaid this defendant is not informed, and this defendant has no information or belief upon the subject sufficient to enable him to answer said allegation and placing his allegation upon that ground, denies the same.” As a separate defense appellant pleaded that the action is barred by the provisions of section 336, subdivision 1, of the Code of Civil Procedure, which prescribes a five-year limitation for action upon a judgment. As a further defense appellant pleaded that the plaintiff is estopped because of laches, in that the summons herein was not served upon appellant until April 25, 1925, although appellant during all of the preceding time while the action was pending was residing and well known to be residing in the city of Los Angeles.

The grounds of appeal are: That appellant’s general demurrer to the complaint should have been sustained, for the reason that no cause of action was stated; that the motion for judgment on the pleadings should not have been granted, inasmuch as, in the manner hereinabove stated, the defendant denied that no part of the judgment has been paid, and denied that the judgment remains wholly or at all unpaid; that respondent is estopped by reason of laches and delay in the prosecution of the action.

Section 685 of the Code of Civil Procedure provides: “In all eases 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, or by

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judgment for the purpose, founded upon supplemental pleadings ...” It is the contention of appellant that because the plaintiff might have enforced his original judgment by-execution either before or after the lapse of five years from the date of its entry, or by supplemental pleading might have renewed the judgment without instituting a separate action, the right to institute a separate action is by law superseded and denied. We think that there is no merit in this point. Section 685 of the Code of Civil Procedure, deals only with the method of enforcing a judgment, and especially the method of enforcing a judgment after the right to institute a new action has become barred. The section does not either directly or by implication affect the right of a judgment creditor, within the period of limitation, to institute an action upon his judgment.