Los Angeles Morris Plan Co. v. O'Day

WOOD (W. J.), J. This is an appeal from an order granting plaintiff’s motion made under section 685 of the Code of Civil Procedure for the issuance of an execution [357]against defendant L. D. Dicker more than five years after the entry of judgment. Defendant contends that the superior court abused its discretion in ordering the execution to issue.

It is provided in section 681 of the Code of Civil Procedure that execution may issue at any time within five years after the entry of judgment. And in section 685 it is provided: “In all cases 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 accompanied by an affidavit or affidavits setting forth the reasons for failure to proceed in compliance with the provisions of section 681 of this code. The failure to set forth such reasons as shall, in the discretion of the court, be sufficient, shall be ground for the denial of the motion.” Plaintiff contends that it was not necessary to set forth any excuse for not taking out execution within five years from the entry of the judgment and cites very respectable authority in support of its position. (Peers v. Stoll, 32 Cal. App. (2d) 511 [90 P. (2d) 119].) However, plaintiff need not depend upon this contention for we are satisfied that, in view of the allegations in the affidavit filed, the superior court did not abuse its discretion in granting the motion for the issuance of the execution.

As a basis for its motion plaintiff filed an affidavit from which it appears that the judgment upon which execution issued was entered on July 11, 1930, against defendant Dicker in the sum of $320, attorney’s fees and costs, making a total of $445.25. In the original complaint, which was filed on October 3, 1925, several defendants in addition to Dicker were named. The complaint was based upon a loan in the sum of $500, payable in installments of $10 per week. A number of payments were made on the loan and the suit was for the balance of the loan. Several requests for payment were made prior to the filing of the action. After the action was filed several writs of attachment were issued against Dicker but nothing was obtained thereon. On numerous occasions notices and letters requesting payment on the obligation were made but without result. After the judgment was entered an execution was issued but it was returned unsatisfied. A second execution was issued and on May 12, 1931, defendant Dicker was examined but no assets could be located. Between the years 1931 and 1938 several demands were made upon Dicker for payment but no payment was