Turner v. Donovan

WOOD (Parker), J. In a prior action between these parties a money judgment in favor of plaintiffs was entered in October, 1931. Defendant appealed. Execution was not stayed, and upon levy of execution while the appeal was pending the judgment was satisfied partially. The judgment was affirmed, and the remittitur was filed on March 15, 1935.

The complaint in the present action, based upon the prior judgment, was filed in December, 1939. The answer denied only the allegation that the judgment became final on March 15, 1935 (when the remittitur was filed), and alleged that it [237]became final for all purposes of this action when the prior judgment was entered in October, 1931.

As affirmative defenses, the answer alleged: (1) that the judgment was enforceable under section 681 of the Code of Civil Procedure at any time within five years after entry thereof; that if, by reason of the appeal, the time until March 15, 1935, must be excluded from the five years within which execution may issue, then the judgment was still enforceable and this action may not be maintained; (2) that more than five years have elapsed from the date of entry of the judgment, and plaintiffs have an enforceable judgment under section 685 of the Code of Civil Procedure, and this action may not be maintained since it is a suit upon the same cause of action; and (3) that the time within which an action might be commenced under section 336 of the Code of Civil Procedure expired in October, 1936 (five years after entry of judgment), and any right of action is barred by the statute of limitations under said section 336.

The court found that the action was not barred by the statute of limitations, and rendered judgment for plaintiffs. Defendant appeals upon the judgment roll.

The principal question presented upon this appeal is whether the action is barred by the provisions of section 336, subdivision 1, of the Code of Civil Procedure. This section must be considered in connection with section 335 of that Code, which is: “The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows:” Then follows section 336, which is in part: “Within five years: 1. An action upon a judgment ... of any state within the United States.” The inquiry arises as to when the period of five years commenced.

Appellant contends that it commenced at the time of the entry of the judgment in October, 1931; that a right of action, if any, based upon the judgment expired in October, 1936, and therefore was barred by the statute of limitations.