Milstein v. Superior Court

MOORE, P. J. Petitioner seeks by writ of mandate to compel the superior court to vacate an order staying execution after his ineffectual attempt to induce the court to set it aside. His contention is that the court had no jurisdiction to make the order complained of. He had procured the execution to be issued pursuant to section 685, Code of Civil Procedure,* which requires the judgment creditor to accompany his application for an order to enforce a judgment more than five years after its entry with an affidavit setting forth the reasons [124]for his failure to proceed prior to the expiration of the five years. The court may grant or deny the application in the exercise of a sound discretion.

On August 7, 1945, petitioner, as assignee of the judgment, served notice on defendant that on August 20th he would move the court for the order. Three days thereafter defendant’s counsel in the city of Eureka telephoned petitioner’s counsel in Ventura that the defendant had received the affidavit and notice and requested further information, to which petitioner replied. On August 20th petitioner appeared before respondent court and presented his motion for the order which was granted and execution was issued directed to the sheriff of Humboldt County. On August 27th defendant’s counsel at Eureka stated that he thought the matter might be compromised and requested petitioner’s counsel to do nothing further with reference to the levy. On September 19th petitioner’s counsel was served with a notice of defendant’s motion through her Eureka counsel, joined by attorney Don R. Holt of Ventura, to set aside the order of August 20th on the ground of the insufficiency of the motion and of the affidavit on which it was predicated. At the same time petitioner’s counsel was served with a copy of the order issued by the Honorable Louis C. Drapeau, judge of respondent court, staying the execution issued on August 20th until after the decision on defendant’s motion to set aside the order directing its issuance.

Thereafter on October 1, the time designated in defendant’s notice of motion to set aside the order of August 20th, petitioner appeared before respondent court for a hearing upon that motion. After ascertaining that defendant would require several hours to present his application Judge Drapeau fixed the date for the hearing of her motion for January 7, 1946. Thereupon petitioner’s counsel moved the court to dissolve the order staying the execution, which motion was by the court denied.

In their return respondents contend that petitioner’s affidavit for the order of August 20th was defective and insufficient in many specified respects; that the court has power temporarily to stay executions on its judgments whenever it is necessary to accomplish the ends of justice (citing 33 C.J.S. 312); that the exercise of its discretion will not be controlled by mandate except in case of palpable abuse (citing Realty Const. & M. Co. v. Superior Court, 165 Cal. 543 [132