McColgan v. Scoble

PETERS, P. J. Appellant, as executrix of the last will and testament of Samuel Weinstein, deceased, appeals from an order of the trial court allowing an execution to issue after five years from the date of entry of the judgment, and permitting respondent to present her claim based on the judgment to the appellant, as executrix of Weinstein’s estate. The sole contention of appellant is that notice of the motion was not served upon her as provided by section 685 of the Code of Civil Procedure.

So far as pertinent here, that section provides: “In all eases the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of the court, upon motion, and after due notice to the judgment debtor . . . ”. In the instant case, the notice of motion was not served on the appellant, but was served on the firm of attorneys who were then acting as the attorneys for her as executrix of the estate of Samuel Weinstein, the judgment debtor. Appellant appeared specially to object to the jurisdiction of the court. Her objections were overruled.

The record does not show that appellant has been substituted as a party defendant in the action in which the judgment was secured against Samuel Weinstein. Although it undoubtedly is better practice to secure the substitution, it has been expressly held that failure to secure such substitution, if proper service is otherwise had, does not require the reversal of the order. In Tolle v. Doak, 12 Cal. App. (2d) 195, 199 [55 Pac. (2d) 542], the court stated: “Although there was no formal order of substitution, under the circumstances shown in this case, this should not require a reversal of the order. (Mooney v. Superior Court, 183 Cal. 705 [192 Pac. 542].)”

This leaves for determination the sole question as to whether service upon the attorney for the executrix of the estate of the deceased debtor is a valid service within the meaning of section 685 of the Code of Civil Procedure. There are three cases discussing the question of what constitutes a proper service within the meaning of that section since its amendment in 1933 when the requirement was added that the motion could be granted only after ‘1 due notice to the judgment debtor”. The first of these cases is Tolle v. Doak, supra, re[337]lied upon by appellant. In that ease, as in this, the notice of motion was served on the attorney for the executor of the estate of the judgment debtor. There too, as in this ease, the executor attempted to appear specially to object on the ground that due notice had not been given. The trial court, as in the instant ease, made its order allowing the execution. So far, the two cases present identical factual situations. But in the Tolle case, after the court made its order, the executor moved to vacate it on the ground that the court was without jurisdiction for the reason that the executor had not been substituted for the judgment debtor. The court held (Second Appellate District, Division One) that, by making such a motion, the executor made a general appearance and must be deemed to have waived any defect in the service of the notice of motion. This did not constitute a holding that service on the attorney for the executor was insufficient as a matter of law. In effect, all the court held was that, without deciding whether service on the attorney for the executor was valid, in the particular case, there was another reason— a subsequent general appearance—that conferred jurisdiction on the court. It is true that the court in the course of its opinion stated that ‘ ‘ as the statute is silent as to the manner of giving the notice, personal service is required.” Appellant interprets this to mean that service must be had on the judgment debtor or executor personally, and that service on an acting attorney is not sufficient. That this is not the correct interpretation of the statement is demonstrated by a later decision by the same District and Division of the Appellate Court. (Widener v. Hartnett, 30 Cal. App. (2d) 165 [85 Pac. (2d) 925].) In that case it was held that service upon the attorney of the judgment debtor, who was still alive, was personal service within the meaning of section 685 as interpreted in Tolle v. Book, supra. The court predicated its decision upon section 1011 of the Code of Civil Procedure which provides that personal service may be had “by delivery to the party or attorney on whom the service is required to be made”.