Elgert v. Howe

DBAPEAU, J. October 13, 1937, Lena Howe negligently drove a Chevrolet automobile into plaintiffs’ old Ford with the usual disastrous results. Complaint for damages suffered by plaintiff husband and wife was filed, and brought to trial, resulting in judgment April 27, 1938. The judgment was for $3,247.32 for the husband, and $1,000 for the wife.

No execution was issued or levied. No legal steps were [653]taken to collect the judgment until March 4,1949, when notices of motion were filed. The superior court made the following orders: (a) Substituting the public administrator of Los Angeles County as defendant, Lena HoWe having passed away October 10, 1948; (b) granting leave to enforce the judgment against her estate, in accordance with section 685, Code of Civil Procedure; and (c) denying the public administrator’s motion to strike affidavits and portions of an affidavit from the files.

Prom these orders the public administrator appeals.

The motions were supported by affidavits of plaintiffs, their counsel, and an employee of a savings and loan association. Prom these the following facts appear: That the judgment has not been satisfied; that timely search was made of the county records to discover if decedent owned any property; that she lived in a house upon which a declaration of homestead had been filed; that this property was worth less than the homestead exemption; that decedent owned another parcel of property, title to which was in a trust company; that she advised counsel for plaintiffs that she did not own this property, and that it was of no value; that she had an account in a federal building and loan association, but that no one knew, or found out about it until after her death; that she pledged the officers of the association to secrecy, which pledge they kept for her; that she told counsel for plaintiffs that she did not own any property except her homestead; that from the date of the judgment until the making of the motions, frequent search and inquiry were made to discover property of decedent subject to execution, without avail; that decedent posed as a person indigent and without means, and without sufficient to live on except for the charity of her friends- and neighbors; that when the trial on the issue, of negligence was had, decedent and her then counsel informed plaintiffs’ counsel that they would not appear to contest the action, and that there was nothing whatever out of which any judgment against decedent could be satisfied; that for the foregoing reasons no execution was issued or levied, and no supplemental proceedings were pursued.