National Bank of California v. Los Angeles Iron & Steel Co.

Appeals from an order for the enforcement of a judgment over five years old, and from an order refusing to set aside the former order and to recall the execution thereon issued.

The latter order was issued on affidavits, and, among others, on that of R. H. Herron, a defendant in the suit, from which it appears that at some date unspecified, but before the original order "he paid the full amount of the judgment to [the plaintiff] with interest." And as it does not appear that any of the proceedings specified in section 709 of the Code of Civil Procedure were taken by him, it is clear that the judgment was extinguished. (Civ. Code, sec. 1474;Reynolds v. Lincoln, 71 Cal. 184, [9 P. 176, 12 P. 449];Estate of Baby, 87 Cal. 202, [22 Am. St. Rep. 239, 25 P. 405].) It appears, indeed, from the affidavit of Herron that the judgment was, at his instance, assigned to one Hays in trust for himself and his attorney, but the date of the assignment is not given, and from aught that appears to the contrary, years may have elapsed between the payment and the assignment; and, indeed, from the careful omission of dates in the affidavit it may, perhaps, be inferred that such was the case. But at all events, it clearly appears that the assignment was subsequent to the payment; or, at least, the contrary does not appear. Indeed, giving to the term "payment" its strict and proper construction, it may be inferred from the payment itself that there was no assignment; for if *Page 661 there had been, there would have been no payment of the judgment, but a purchase of it only; a payment and an assignment being essentially different transactions.

In this connection, it should be observed that, assuming the validity of an assignment of a judgment to one of the defendants (Williams v. Riehl, 127 Cal. 365, [78 Am. St. Rep. 60, 59 P. 762]; Freeman on Judgments, sec. 472), yet the right of the assignee to the judgment in such case is rather an equitable than a legal right, and extends no further than to the use of the judgment as a security for the payment of the amounts properly due from other parties. It, therefore, would seem to be a right that can be exercised only after an affirmative showing to the court and a determination of the indebtedness of the other defendants; by which we mean, not that a new suit is required, but that, at least, application should in all cases be made to the court. As to the original order, it appears that this was made without notice to the defendant, and without any showing to the court other than such as was furnished by the record itself. On the latter account, the order was clearly erroneous; for it has been held that the order is to be granted only "in the exercise of a sound discretion by the court" (Wheeler v. Eldred, 121 Cal. 28, [66 Am. St. Rep. 20, 53 P. 431], 137 Cal. 38, [69 P. 619]); which implies that it is not to be issued as of course, but that a showing must be made to overcome the presumption arising from the bar of the statute.