Weldon v. Rogers

McFARLAND, J.

On April 2, 1891, plaintiff recovered a money judgment against defendant for three thousand nine hundred and sixty dollars, with interest and costs. Nothing was done with respect to said judgment for several years after its entry. In August, 1894, the plaintiff died, and afterwards Sophie B. Weldon was duly appointed his administratrix. On April 10, 1905, which, of course, was more than five years after the entry of the judgment, the administratrix moved the court that an order of execution issue on said judgment under sections 685 and 686 of the Code of Civil Procedure; and on the same day such order was made by the court. The order was made without notice to defendant, who thereafter moved to set the order aside. The motion was denied by the court, and from the order denying it the defendant appeals.

Down to April 9, 1895, section 685 was as follows: “In all cases, other than for the recovery of money, the judgment may be enforced or carried into execution after five years from the date of its entry, by leave of the court, upon motion, or by judgment for that purpose, founded upon supplemental pleadings. ”

On April 9, 1895, the section was amended by omitting the words “other than for the recovery of money” and leaving the section to apply to all cases; and it was also further amended by adding the following: “but nothing in this section shall be construed to revive a judgment for the recovery of money which shall have been barred by the statute of limitations at the time of the passage of this act.” Now, appellant contends that this amendment is not applicable to the judgment involved in the case at bar, because to so apply

[434]

it would be to hold it to be retroactive, and a statute is not to-be construed as retroactive unless that meaning clearly appears upon its face. .But, really, we .do not see how any question arises here as to the retroactive operation of said amendment of April 9; 1895, to section 685. At the time of-that amendment the said judgment in

Weldon

v.

Rogers

was an existing judgment not barred by the statute of limitations, and in full, force.and effect. The amendment was not in the nature of a revival of that judgment; it did not need revival. The applicability of the amendment to that judgment, as well as to all other live' judgments existing at that time, is not, therefore, of retroactive applicability. However, the provision in the amended act that “nothing in this section shall be construed to revive a judgment for the recovery of money which shall have been barred by the statute of limitations at the time of the passage of this act” clearly shows that the intent of the legislature was that it should apply to all judgments which had not been barred by the statute of limitations at the time of said amendment.