Bredfield v. Hannon

SHAW, J.

On September 26, 1891, the plaintiff recovered judgment in the superior court against J. Hannon, Laura Han-non, and E. W. Reid, for five hundred and sixty dollars. Noth

[498]

íng was paid on the judgment, and thereafter, on June 19, 1905, upon application of plaintiff, made without notice to the defendants or either of them, the court made an order that an execution issue upon the judgment against the defendants, and upon the same day an execution was issued in accordance with the order. Thereafter, upon notice duly given, the defendant Laura Hannon moved the court to set aside the order for the issuance of the execution. The motion came on for hearing upon affidavits and a counter affidavit, and was denied by the court. From this last order the defendant Laura Hannon appeals.

It is not claimed that the judgment has been paid. At the time it was'rendered, and for a long time afterward, the defendants had no property, and the issuance of an execution would have been fruitless and would have entailed useless expense. The plaintiff did not discover that the defendant Laura Hannon had acquired any property until a short time before the execution was issued.

The following propositions are established in the case of

Doehla

v.

Phillips, ante,

p. 488, [91 Pac. 330], this day decided: 1. The amendment of 1895 to section 685 of the Code of Civil Procedure, whether technically retroactive, as that word is used in section 3 of the Code of Civil Procedure, or not, is applicable to all judgments then existing and not barred by the statute of limitations at the time the amendment was passed.

2. Notice to the defendants of the time and place of the hearing of the motion for leave to have the execution issued was not necessary. (See, also,

Harrier

v.

Bassford,

145 Cal. 532, [78 Pac. 1038], and