Reily v. Young

DESMOND, J., pro tem. —This is an appeal from an order by which the trial court, upon the application of respondent, Cora B. Young, recalled and quashed writs of execution, in the hands of the sheriffs of Kern and Los Angeles Counties, at the same time ordering released all property attached; also ordering the clerk of the Superior Court of Los Angeles County to record satisfaction in full of the judgment upon which the executions had issued. This judgment had been entered, under a default, in favor of C. B. Land, assignee of A. G. Reily, and against respondent, on November 28, 1933. No attempt to execute upon it was made until March of 1936, when the two writs above mentioned were issued, not at the request of the original plaintiff or his assignee, but at the request of Cora B. Young’s codefendant, The Young Holdings Corporation, Ltd. This company, on December 8, 1933, had received a written assignment of the entire interest of Reily’s assignee in the default judgment which had been taken, in the amount of $10,000, against respondent. Appellant contends that the order of the trial court should be reversed, claiming that the court erred in taking testimony of facts and occurrences antedating entry of the judgment; also, that the decision of the court was contrary to the evidence adduced. It is also claimed that the parties litigant are entitled to findings, though the trial court determined that they were not necessary.

In arguing that it was improper for the court to go into circumstances leading up to the procurement of the judgment, appellant cites Weldon v. Rogers, 159 Cal. 700 [115 Pac. 464]; but that ease does not seem in point, for it relates not to a motion to quash an execution improvidently issued, but to the exercise of discretion by the court under section 685 of the Code of Civil Procedure, by which execution of a [183]judgment may be ordered or refused after the lapse of five years from the date of its entry. The other California eases cited by appellant on this point, Town of Hayward v. Pimental, 107 Cal. 386 [40 Pac. 545], and Associated Oil Co. v. Mullin, 110 Cal. App. 385 [294 Pac. 421], as well as cases in other jurisdictions to which we are referred, have no application to this case, for they merely hold that the validity of a judgment may not be attacked by a motion to quash. As we understand it, the respondent here did not question the validity of the default judgment, but contended that it had been paid by delivery to Reily’s assignee, C. B. Land, of deeds to two lots and allowing Reily to retain approximately $500 in cash which he had secured by attaching respondent’s bank account. They further contended and satisfied the trial court that this arrangement for settlement of the judgment was made by a stipulation entered into with Reily’s assignee by an attorney named Routhe, who at that time represented both The Young Holdings Corporation, Ltd., and this respondent, Cora B. Young. This stipulation, dated November 27, 1933, was introduced at the hearing on the motion, and provided that upon the conveyance of the two lots the assignee of Reily “will immediately assign said judgment to The Young Holdings Corporation, Ltd., a corporation, owners of the said lots aforesaid. That no further levy or sale under execution incident to said judgment will be made after the aforesaid acts have been accomplished”.