Rowe v. Blake

Harrison, J. December 31, 1879, judgment was entered in the late twenty-third district court of the city and county of San Francisco, in favor of the plaintiff and against the defendants, in which the amount of the indebtedness of the defendant Blake to the plaintiff was ascertained and declared to be a lien upon certain lands, and directing a sale of the lands to satisfy the said indebtedness. This judgment was entered of record January 26, 1880, and on the 30th of December, 1884, the plaintiff brought the present action, and in the amended complaint therein alleges that said judgment and decree has not been satisfied in whole or in part by execution or otherwise, and said property has not been sold, and said judgment and decree is still in full force and of binding effect, unmodified, and unreversed,” and asks for a judgment that the lands therein described be sold to satisfy the amount of said indebtedness. The defendants demurred to this complaint upon the ground that it does not state facts sufficient to constitute a cause of [170]action, and their demurrer having been sustained, judgment was entered in their favor, from which the plaintiff has appealed. The amended complaint contains also averments of certain facts in excuse of the delay in prosecuting the action, some of which have supervened since the filing of the original complaint, and to which defendants have demurred on the ground of uncertainty; but in the view we take of the case, it is unnecessary to consider either these averments or the demurrers thereto.

It is contended by the respondents that an action cannot be maintained in this state to enforce a judgment for the foreclosure of a mortgage; that the only remedy of the plaintiff in such judgment is its enforcement by a sale within five years from its entry; and that failing to effect such sale,-the judgment ceases to be operative. In Ames v. Hoy, 12 Cal. 11, it was held that an action could be maintained in this state upon a domestic judgment, and in Stuart v. Lander, 16 Cal. 373; 76 Am. Dec. 538, it was held that such an action would lie, although the time within which an execution might issue had expired. Respondents seek to distinguish these cases from the present by the fact that they were brought to recover a specific sum of money that had been fixed by the prior judgment, whereas the present action is brought to procure a sale of the same property which the prior judgment directed to be sold. We are unable, however, to perceive any substantial reason for denying the right to maintain this action that would not be applicable in the other eases. There is certainly nothing in the opinion in Ames v. Hoy, 12 Cal. 11, that warrants such distinction. It is there said“The chief argument is that there is no necessity for a right of action on a judgment, inasmuch as execution can be issued to enforce the judgment already obtained, and no better or higher right or advantage is given to the subsequent judgment. But this is not true, in fact, as in many cases it may be of advantage to obtain another judgment in order to save or prolong the lien.” The Code of Civil Procedure defines a civil action as a proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, and declares that it arises out of an obligation by which one person is bound to do or not to do a certain thing. (Code Civ. Proc., secs. 22, 25, 23.) Whether the judgment be regarded as