Kellow v. Lane

BARTLETT, J. pro tem. This is an appeal from an order made on December 19, 1940, denying appellant’s motion for an order directing issuance of a writ of execution after five years from the date of the judgment under the provisions of section 685 of the Code of Civil Procedure and also from an order made January 13, 1950, denying a motion made by appellant to vacate and set aside its order of December 16, 1949, and for leave to renew or reconsider the original motion.

The judgment herein was entered on May 2, 1938. The notice of motion for an order directing issuance of execution on the judgment after a lapse of five years was filed November 2, 1949, eleven years and six months later. The affidavits accompanying the motion and upon which it was based were affidavits made by the appellant, her office manager, a former wife of the respondent and the respondent’s son. The judgment in the case before us was based upon a judgment theretofore entered in 1933. The affidavit of appellant is concerned in most part with attempts to collect on this prior judgment, made in the year 1933 and the proceedings in a bankruptcy matter of respondent’s which terminated on July 26, 1935. The only matter in the affidavit referring in any way to any possible efforts to collect the judgment in the action before us rendered in 1938 is the following: ‘ ‘ That said defendant Walter F. Lane has at all times herein mentioned been a resident of the County of Los Angeles, State of California ; that the records of said Los Angeles County have been [823]searched periodically and plaintiff discovered no property assessed to said Walter F. Lane at the time of the entry of the judgment in this action or at any time since the entry of the original judgment in said Action No. 346632. That since the termination of said Bankruptcy proceedings plaintiff has made and caused to be made diligent search and inquiry at frequent and regular intervals concerning any property of said Walter F. Lane. That until on or about October 1, 1949 affiant discovered no property of said Walter F. Lane upon which execution might be levied and received no information which might have led to the discovery of any property of said Walter F. Lane, and that the issuance of a writ of execution upon said judgment would have been futile.” Following this quotation from her affidavit the appellant relates that a former wife and a son of respondent’s called on her office manager on October 1, 1949, after which this affidavit was made on October 28,1949. So far as this affidavit is concerned it gives us no facts as to what was done. She does not tell us when the records were searched, what she means by “periodically,” whether these searches were made during the five-year period after 1938 or as to when and of whom she made the inquiry concerning the property of respondent. She contents herself with saying that she discovered no property upon which execution might have been levied or which might have led to its discovery. It was stated in Di Corpo v. Di Corpo, 33 Cal.2d 195 at page 200 [200 P.2d 529], in considering affidavits which contained more facts than the quoted portion of this one: “Although plaintiff alleged that ‘she has been unable . . . to find any property of the defendant,’ her affidavits do not show what efforts were made to determine where defendant lived after 1932 or to locate any property owned by him. She has failed to set forth facts from which the trial court might conclude that she had exercised due diligence in locating defendant’s property.” The affidavit of the office manager of appellant relates to no efforts whatever to collect the judgment but merely relates a conversation held by her with respondent’s former wife and his son held October 1, 1949. In addition to that this affidavit is entirely hearsay and should be disregarded in any event. (Southern Cal. Tel. Co. v. Damenstein, 81 Cal.App.2d 216, 221 [183 P.2d 675].) The affidavit of respondent’s son merely states that the account of the conversation between his mother and himself and appellant’s office manager was true and gives no