Welk v. Conner

DO CLING, J.,

pro

tem.

On November 13, 1913, Theodore J. Welk recovered two judgments in the Superior Court in separate actions in each of which the appellant Newton J. Skinner was a defendant. On March 14, 1927, Welk having died, his administrator procured from the Superior Court an order for the issuance of a writ of execution in one of these actions, No. B3694. Thereafter appellant moved the court for an order recalling and vacating said writ of execution and also for an order declaring such judgment satisfied under section 675 of the Code of Civil Procedure. These motions were denied and from the orders denying them this appeal is taken.

While fourteen separate grounds were stated in support of the motion they are but different ways of stating two grounds: 1. That the trial court committed an abuse of discretion in ordering execution to issue after a lapse of thirteen years from the entry of judgment, and 2. That by agreement of the parties the judgment had been satisfied, though not of record, shortly after its entry.

The first of these grounds may be briefly disposed of by reference to the following decisions:

Harlan

v.

Harlan,

154 Cal. 341 [98 Pac.

32]; Weldon

v.

Rogers,

151 Cal. 432 [90 Pac. 1062];

Doehla

v.

Phillips,

151 Cal. 488 [91 Pac. 330] ;

Demens

v.

Huene,

89 Cal. App. 748 [265 Pac. 389], These cases clearly settle the rule that under section 685 of the Code of Civil Procedure the mere lapse of time after entry of judgment does not deprive the trial court of the power to order the issuance of execution.

The second ground requires an examination of the evidence before the trial court on the motions. In support of his motions appellant filed two affidavits, both made by himself. Prom these and the documentary evidence introduced it appears that in action No. B3694 judgment was entered in favor of plaintiff for $1760, together with $10.50 costs and $75 attorney’s fees. In the other action, No. B3693, judgment was entered for the foreclosure of a chattel mortgage in the amount of $7,406.20, together with $11.25 costs and $350 attorney’s fees. On March 14, 1916, the sheriff returned a decree of foreclosure partially satisfying the judgment in the foreclosure proceeding. Thereafter, and