Buell v. Buell

Belcher, C. This is an appeal from an order made by the superior court of Monterey County on the 11th of November, 1889; recalling a writ of execution, issued by its order on a money judgment rendered by the district court in and for that county on the 28th of February, 1877.

Notice of the motion was served on appellant’s attorney in proper time, and it stated that respondent would move the court, at a time named, to recall the writ, “ for the reason that the said execution was wrongfully and unlawfully and improperly issued ”; and it further stated that the motion would be made on the record and papers on file, etc.

When - the motion came on to be heard, appellant objected to the hearing upon the grounds, — 1. That no legal notice of the motion had ever been filed or served upon him or his attorney; and 2. That the notice failed to specify in what respect the execution was either wrongfully or unlawfully or improperly issued. The objections were overruled, and an exception reserved.

It was then shown that execution on the judgment was stayed by various orders of the court, made at the request of respondent, until January, 1878; that on the 17th of January, 1878, respondent commenced an action against appellant, in the district court in and for Santa Clara County, to obtain an injunction restraining appel[396]lant from taking out an execution on, or enforcing the collection of, his said judgment; that am injunction was issued as prayed for, and served on appellant, and that it remained in full force and effect until the 10th of September, 1885, when it was dissolved by the judgment and decree of the superior court of the county; that on the 30th of September, 1885, the appellant applied to the superior court of Monterey County for an order directing its clerk to issue an execution on his judgment, and that the order asked for was made, and in pursuance thereof an execution was issued and placed in the hands of the proper officer for levy and service, but subsequently returned wholly unsatisfied; that again, on the 16th of September, 1889, the appellant made application to the same court for an order directing the clerk thereof to issue an execution on his judgment, and “ the said superior court, after a full hearing and consideration of the facts and matters appertaining thereto, duly gave, made, and caused to be filed and entered in said cause its order, in writing, directing and commanding the clerk of said court to issue a writ of execution,” etc.; and that, in pursuance of this order, an execution was issued and placed in the hands of the sheriff of Santa Barbara County, with instructions from appellant’s attorney to levy the same upon the property of respondent.