Prytz v. Associated Farms, Inc.

DOOLING, J. This appeal involves the enforcement of the same judgment entered in favor of Prytz against Silva which was before the District Court of Appeal, Third Appellate Dis[2]trict, in Silva v. Superior Court, 83 Cal.App.2d 521 [189 P.2d 314]. A money judgment was entered on June 3, 1940, in favor of Prytz and against Silva and others. On July 4, 1942, Silva died. No proceedings to probate the decedent Silva’s estate were commenced until November, 1946, when on petition of certain creditors of Silva, Margaret Buckmaster was appointed administratrix of his estate. Respondent, within the time required by law, filed a creditor’s claim based on the aforesaid judgment which was approved by the administratrix. Thereafter on May 26, 1947, respondent filed in the' Superior Court of Alameda County, in which his judgment had been secured, a notice of motion for an order granting him leave to enforce his judgment against the estate of Silva. This motion was granted on July 1, 1947, and it is from the order granting this motion that this appeal is taken.

Section 685, Code of Civil Procedure, under which the motion was made, provides in its first paragraph:

“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. ’ ’

It appeared from the affidavit in support of the motion that Silva had died on July 4, 1942, and that no personal representative of his estate had been appointed until the appointment of Margaret Buckmaster as administratrix on November 14, 1946. These facts sufficiently support the order appealed from as may be gathered from the opinion of the court in Silva v. Superior Court, supra, 83 Cal.App.2d 521. The court in that case said at page 527:

“The judgment upon which the claim of George G. Prytz was presented to the estate and approved was not outlawed. The judgment was rendered against Manuel Silva June 3, 1940. He died intestate two years thereafter, on July 4, 1942. No administrator of his estate was appointed until November 12, 1946. Since the statute of limitations had not barred an action on the judgment prior to the death of Manuel Silva, the time to commence suit was extended by his death for one year after letters of administration were issued in his estate. (Code Civ. Proc., § 353; Schwartz v. Edmunds, 20 Cal.App.2d